Title 28 Appendix USCTitleAppendix 28a Online@118-34not31 no OLRC 2024-01-08T01:42:57 USCConverter 1.7.2 Title 28APPENDIX JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS Current through 118-34not31   Item  Judicial Personnel Financial Disclosure Requirements (Repealed)  Development of Mechanisms for Resolving Minor Disputes (Omitted)  Federal Rules of Appellate Procedure  Federal Rules of Civil Procedure  Federal Rules of Evidence JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS  [Title III ( 301309) of Pub. L. 95521 Oct. 26, 1978 92 Stat. 18511861 Pub. L. 9619 June 13, 1979 93 Stat. 3743 Pub. L. 96417, title VI,  601(9) Oct. 10, 1980 94 Stat. 1744 Pub. L. 96579,  12(c) Dec. 23, 1980 94 Stat. 3369 Pub. L. 97164, title I,  163(a)(6) Apr. 2, 1982 96 Stat. 49 Pub. L. 98150,  10 Nov. 11, 1983 97 Stat. 962 Pub. L. 99514,  2 Oct. 22, 1986 100 Stat. 2095 Pub. L. 99573,  6 Oct. 28, 1986 100 Stat. 3231 Pub. L. 101237, title VI,  602(a)(1) Dec. 18, 1989 103 Stat. 2094 Pub. L. 101194, title II,  201 Nov. 30, 1989 103 Stat. 1724 Effective Date of Repeal Repeal effective Jan. 1, 1991 section 204 of Pub. L. 101194 section 13104 of Title 5 Provisions of title III of Pub. L. 95521 Nov. 30, 1989 Jan. 1, 1991 Pub. L. 101194 Pub. L. 101194 Pub. L. 95521 Jan. 1, 1991 Pub. L. 101280 May 4, 1990 104 Stat. 157 section 101 of Pub. L. 95521 DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES  Codification Pub. L. 96190 Feb. 12, 1980 94 Stat. 17 Pub. L. 96190 FEDERAL RULES OF APPELLATE PROCEDURE (As amended to December 26, 2023 Historical Note The Federal Rules of Appellate Procedure were adopted by order of the Supreme Court on Dec. 4, 1967 Jan. 15, 1968 July 1, 1968 The Rules have been amended Mar. 30, 1970 July 1, 1970 Mar. 1, 1971 July 1, 1971 Apr. 24, 1972 Oct. 1, 1972 Apr. 30, 1979 Aug. 1, 1979 Oct. 12, 1984 Pub. L. 98473, title II,  210 Mar. 10, 1986 July 1, 1986 Nov. 18, 1988 Pub. L. 100690, title VII,  7111 102 Stat. 4419 Apr. 25, 1989 Dec. 1, 1989 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Apr. 27, 1995 Dec. 1, 1995 Apr. 23, 1996 Dec. 1, 1996 Apr. 24, 1996 Pub. L. 104132, title I,  103 110 Stat. 1218 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Mar. 27, 2003 Dec. 1, 2003 Apr. 25, 2005 Dec. 1, 2005 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2010 Dec. 1, 2010 Apr. 26, 2011 Dec. 1, 2011 Apr. 16, 2013 Dec. 1, 2013 Apr. 25, 2014 Dec. 1, 2014 Apr. 28, 2016 Dec. 1, 2016 Apr. 27, 2017 Dec. 1, 2017 Apr. 26, 2018 Dec. 1, 2018 Apr. 25, 2019 Dec. 1, 2019 Apr. 27, 2020 Dec. 1, 2020 Apr. 14, 2021 Dec. 1, 2021 Apr. 11, 2022 Dec. 1, 2022 Apr. 24, 2023 Dec. 1, 2023    TITLE I. APPLICABILITY OF RULES  Rule  1. Scope of Rules; Definition; Title.  2. Suspension of Rules.  TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT  3. Appeal as of RightHow Taken.  [3.1. Abrogated.]  4. Appeal as of RightWhen Taken.  5. Appeal by Permission.  [5.1. Abrogated.]  6. Appeal in a Bankruptcy Case.  7. Bond for Costs on Appeal in a Civil Case.  8. Stay or Injunction Pending Appeal.  9. Release in a Criminal Case.  10. The Record on Appeal.  11. Forwarding the Record.  12. Docketing the Appeal; Filing a Representation Statement; Filing the Record.  12.1. Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal.  TITLE III. APPEALS FROM THE UNITED STATES TAX COURT  13. Appeals from the Tax Court.  14. Applicability of Other Rules to Appeals from the Tax Court.  TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER  15. Review or Enforcement of an Agency OrderHow Obtained; Intervention.  15.1. Briefs and Oral Argument in a National Labor Relations Board Proceeding.  16. The Record on Review or Enforcement.  17. Filing the Record.  18. Stay Pending Review.  19. Settlement of a Judgment Enforcing an Agency Order in Part.  20. Applicability of Rules to the Review or Enforcement of an Agency Order.  TITLE V. EXTRAORDINARY WRITS  21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs.  TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS  22. Habeas Corpus and Section 2255 Proceedings.  23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding.  24. Proceeding in Forma Pauperis.  TITLE VII. GENERAL PROVISIONS  25. Filing and Service.  26. Computing and Extending Time.  26.1. Disclosure Statement.  27. Motions.  28. Briefs.  28.1. Cross-Appeals.  29. Brief of an Amicus Curiae.  30. Appendix to the Briefs.  31. Serving and Filing Briefs.  32. Form of Briefs, Appendices, and Other Papers.  32.1. Citing Judicial Dispositions.  33. Appeal Conferences.  34. Oral Argument.  35. En Banc Determination.  36. Entry of Judgment; Notice.  37. Interest on Judgment.  38. Frivolous AppealDamages and Costs.  39. Costs.  40. Petition for Panel Rehearing.  41. Mandate: Contents; Issuance and Effective Date; Stay.  42. Voluntary Dismissal.  43. Substitution of Parties.  44. Case Involving a Constitutional Question When the United States or the Relevant State is Not a Party.  45. Clerks Duties.  46. Attorneys.  47. Local Rules by Courts of Appeals.  48. Masters.  APPENDIX OF FORMS  Form  1A. Notice of Appeal to a Court of Appeals From a Judgment of a District Court.  1B. Notice of Appeal to a Court of Appeals From an Appealable Order of a District Court.  2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court.  3. Petition for Review of Order of an Agency, Board, Commission or Officer.  4. Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis.  5. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court or a Bankruptcy Appellate Panel.  6. Certificate of Compliance With Type-Volume Limit.  7. Declaration of Inmate Filing.  APPENDIX: LENGTH LIMITS STATED IN THE FEDERAL RULES OF APPELLATE PROCEDURE Effective Date and Application of Rules Section 2 of the Order of the Supreme Court, dated Dec. 4, 1967 July 1, 1968 TITLE I. APPLICABILITY OF RULES Rule 1. Scope of Rules; Definition; Title (a) Scope of Rules. (1) These rules govern procedure in the United States courts of appeals. (2) When these rules provide for filing a motion or other document in the district court, the procedure must comply with the practice of the district court. (b) Definition. In these rules, state 1 1 (c) Title. These rules are to be known as the Federal Rules of Appellate Procedure. (As amended Apr. 30, 1979 Aug. 1, 1979 Apr. 25, 1989 Dec. 1, 1989 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 28, 2010 Dec. 1, 2010  Notes of Advisory Committee on Rules1967 These rules are drawn under the authority of 28 U.S.C.  2072, as amended by the Act of November 6, 1966 80 Stat. 1323 As indicated by the titles under which they are found, the following rules are of special application: Rules 3 through 12 apply to appeals from judgments and orders of the district courts; Rules 13 and 14 apply to appeals from decisions of the Tax Court (Rule 13 establishes an appeal as the mode of review of decisions of the Tax Court in place of the present petition for review); Rules 15 through 20 apply to proceedings for review or enforcement of orders of administrative agencies, boards, commissions and officers. Rules 22 through 24 regulate habeas corpus proceedings and appeals in forma pauperis. All other rules apply to all proceedings in the courts of appeals. Notes of Advisory Committee on Rules1979 Amendment The Federal Rules of Appellate Procedure were designed as an integrated set of rules to be followed in appeals to the courts of appeals, covering all steps in the appellate process, whether they take place in the district court or in the court of appeals, and with their adoption Rules 7276 of the F.R.C.P. were abrogated. In some instances, however, the F.R.A.P. provide that a motion or application for relief may, or must, be made in the district court. See Rules 4(a), 10(b), and 24. The proposed amendment would make it clear that when this is so the motion or application is to be made in the form and manner prescribed by the F.R.C.P. or F.R.Cr.P. and local rules relating to the form and presentation of motions and is not governed by Rule 27 of the F.R.A.P. See Rule 7(b) of the F.R.C.P. and Rule 47 of the F.R.Cr.P. Notes of Advisory Committee on Rules1989 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1994 Amendment Subdivision (c) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. The Advisory Committee recommends deleting the language in subdivision (a) that describes the different types of proceedings that may be brought in a court of appeals. The Advisory Committee believes that the language is unnecessary and that its omission does not work any substantive change. Committee Notes on Rules2002 Amendment Subdivision (b). See See Changes Made After Publication and Comments. Committee Notes on Rules2010 Amendment Subdivision (b). Changes Made After Publication and Comment. Rule 2. Suspension of Rules (a) In a Particular Case. On its own or a partys motion, a court of appeals mayto expedite its decision or for other good causesuspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b). (b) In an Appellate Rules Emergency. (1)  Conditions for an Emergency. (2)  Content. (A) designate the circuit or circuits affected; and (B) be limited to a stated period of no more than 90 days. (3)  Early Termination. (4)  Additional Declarations. (5)  Proceedings in a Rules Emergency. (A) suspend in all or part of that circuit any provision of these rules, other than time limits imposed by statute and described in Rule 26(b)(1)(2); and (B) order proceedings as it directs. (As amended Apr. 24, 1998 Dec. 1, 1998 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1967 The primary purpose of this rule is to make clear the power of the courts of appeals to expedite the determination of cases of pressing concern to the public or to the litigants by prescribing a time schedule other than that provided by the rules. The rule also contains a general authorization to the courts to relieve litigants of the consequences of default where manifest injustice would otherwise result. Rule 26(b) prohibits a court of appeals from extending the time for taking appeal or seeking review. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2023 Amendment Flexible application of the Federal Rules of Appellate Procedure, including Rule 2, has enabled the courts of appeals to continue their operations despite the coronavirus pandemic. Future emergencies, however, may pose problems that call for broader authority to suspend provisions of the Federal Rules of Appellate Procedure. For that reason, the amendment adds a new subdivision authorizing broader suspension authority when the Judicial Conference of the United States declares an Appellate Rules emergency. The amendment is designed to add to the authority of courts of appeals; it should not be interpreted to restrict the authority previously exercised by the courts of appeals. The circumstances warranting the declaration of an Appellate Rules emergency mirror those warranting a declaration of a Civil Rules emergency and a Bankruptcy Rules emergency: extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, that substantially impair the courts ability to perform its functions in compliance with these rules. A declaration must designate the circuit or circuits affected. It must also have a sunset provision so that the declaration is in effect for no more than 90 days unless the Judicial Conference makes an additional declaration. The Judicial Conference may also terminate the declaration for one or more circuits before the termination date. When a rules emergency is declared, the court of appeals may suspend in all or part of that circuit any provision of these rules, other than time limits imposed by statute and described in Rule 26(b)(1)(2). This enables the court of appeals to suspend the time to appeal or seek review set only by a rule, but it does not authorize the court of appeals to suspend jurisdictional time limits imposed by statute. Sometimes when a rule is suspended, there is no need to provide any alternative to the suspended rule. For example, if the requirement of submitting paper copies of briefs is suspended, it may be enough to rely on electronic submissions. However, to deal with situations in which an alternative is required, the amendment empowers the court to order proceedings as it directs, the same language that existed in Rule 2now Rule 2(a)before this amendment.  References in Text Appellate Rules, referred to in subd. (b), probably means the Federal Rules of Appellate Procedure, which are set out in this Appendix. TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT Rule 3. Appeal as of RightHow Taken (a) Filing the Notice of Appeal. (1) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d). (2) An appellants failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal. (3) An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment. (4) An appeal by permission under 28 U.S.C.  1292(b) or an appeal in a bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6, respectively. (b) Joint or Consolidated Appeals. (1) When two or more parties are entitled to appeal from a district-court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant. (2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals. (c) Contents of the Notice of Appeal. (1) The notice of appeal must: (A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as all plaintiffs, the defendants, the plaintiffs A, B, et al., or all defendants except X; (B) designate the judgmentor the appealable orderfrom which the appeal is taken; and (C) name the court to which the appeal is taken. (2) A pro se notice of appeal is considered filed on behalf of the signer and the signers spouse and minor children (if they are parties), unless the notice clearly indicates otherwise. (3) In a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class. (4) The notice of appeal encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal. (5) In a civil case, a notice of appeal encompasses the final judgment, whether or not that judgment is set out in a separate document under Federal Rule of Civil Procedure 58, if the notice designates: (A) an order that adjudicates all remaining claims and the rights and liabilities of all remaining parties; or (B) an order described in Rule 4(a)(4)(A). (6) An appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited. Without such an express statement, specific designations do not limit the scope of the notice of appeal. (7) An appeal must not be dismissed for informality of form or title of the notice of appeal, for failure to name a party whose intent to appeal is otherwise clear from the notice, or for failure to properly designate the judgment if the notice of appeal was filed after entry of the judgment and designates an order that merged into that judgment. (8) Forms 1A and 1B in the Appendix of Forms are suggested forms of notices of appeal. (d) Serving the Notice of Appeal. (1) The district clerk must serve notice of the filing of a notice of appeal by sending a copy to each partys counsel of recordexcluding the appellantsor, if a party is proceeding pro se, to the partys last known address. When a defendant in a criminal case appeals, the clerk must also serve a copy of the notice of appeal on the defendant. The clerk must promptly send a copy of the notice of appeal and of the docket entriesand any later docket entriesto the clerk of the court of appeals named in the notice. The district clerk must note, on each copy, the date when the notice of appeal was filed. (2) If an inmate confined in an institution files a notice of appeal in the manner provided by Rule 4(c), the district clerk must also note the date when the clerk docketed the notice. (3) The district clerks failure to serve notice does not affect the validity of the appeal. The clerk must note on the docket the names of the parties to whom the clerk sends copies, with the date of sending. Service is sufficient despite the death of a party or the partys counsel. (e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals. (As amended Apr. 30, 1979 Aug. 1, 1979 Mar. 10, 1986 July 1, 1986 Apr. 25, 1989 Dec. 1, 1989 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 25, 2019 Dec. 1, 2019 Apr. 14, 2021 Dec. 1, 2021  Notes of Advisory Committee on Rules1967 General Note United States v. Robinson Fallen v. United States Richey v. Wilkins Halfen v. United States Riffle v. United States Coppedge v. United States Subdivision (a) Subdivision (b) Subdivision (c) Subdivision (d) Notes of Advisory Committee on Rules1979 Amendment Subdivision (c) Brainerd v. Beal Cobb v. Lewis Holley v. Capps When a notice of appeal is filed, the clerk should ascertain whether any judgment designated therein has been entered in compliance with Rules 58 and 79(a) of the F.R.C.P. See Note to Rule 4(a)(6), infra. Subdivision (d) This requirement is the initial step in proposed changes in the rules to place in the court of appeals an increased practical control over the early steps in the appeal. Subdivision (e) 28 U.S.C. 1917 Under the proposed new Rule 3(e) both fees would be paid to the clerk of the district court at the time the notice of appeal is filed, the clerk of the district court receiving the docket fee on behalf of the court of appeals. In view of the provision in Rule 3(a) that [f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal, the case law indicates that the failure to prepay the statutory filing fee does not constitute a jurisdictional defect. See Parissi v. Telechron Gould v. Members of N. J. Division of Water Policy & Supply Walker v. Mathews Notes of Advisory Committee on Rules1986 Amendment The amendments to Rule 3(d) are technical. No substantive change is intended. Notes of Advisory Committee on Rules1989 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Note to subdivision (c). The amendment is intended to reduce the amount of satellite litigation spawned by the Supreme Courts decision in Torres v. Oakland Scavenger Co Torres Torres The amendment states a general rule that specifying the parties should be done by naming them. Naming an appellant in an otherwise timely and proper notice of appeal ensures that the appellant has perfected an appeal. However, in order to prevent the loss of a right to appeal through inadvertent omission of a partys name or continued use of such terms as et al., which are sufficient in all district court filings after the complaint, the amendment allows an attorney representing more than one party the flexibility to indicate which parties are appealing without naming them individually. The test established by the rule for determining whether such designations are sufficient is whether it is objectively clear that a party intended to appeal. A notice of appeal filed by a party proceeding pro se In class actions, naming each member of a class as an appellant may be extraordinarily burdensome or even impossible. In class actions if class certification has been denied, named plaintiffs may appeal the order denying the class certification on their own behalf and on behalf of putative class members, United States Parole Commn v. Geraghty United Airlines, Inc. v. McDonald Finally, the rule makes it clear that dismissal of an appeal should not occur when it is otherwise clear from the notice that the party intended to appeal. If a court determines it is objectively clear that a party intended to appeal, there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward. Note to subdivision (d). The amendment requires the district court clerk to send to the clerk of the court of appeals a copy of every docket entry in a case after the filing of a notice of appeal. This amendment accompanies the amendment to Rule 4(a)(4), which provides that when one of the posttrial motions enumerated in Rule 4(a)(4) is filed, a notice of appeal filed before the disposition of the motion becomes effective upon disposition of the motion. The court of appeals needs to be advised that the filing of a posttrial motion has suspended a notice of appeal. The court of appeals also needs to know when the district court has ruled on the motion. Sending copies of all docket entries after the filing of a notice of appeal should provide the courts of appeals with the necessary information. Notes of Advisory Committee on Rules1994 Amendment Subdivision (a) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are generally intended to be stylistic only; in this rule, however, substantive changes are made in subdivisions (a), (b), and (d). Subdivision (a). Subdivision (b). In consolidated appeals the separate appeals do not merge into one. The parties do not proceed as a single appellant. Under existing Rule 3(b) it is unclear whether appeals may be consolidated without court order if the parties stipulate to consolidation. The language resolves that ambiguity by requiring court action. The language also requires court action to join appeals after separate notices of appeal have been filed. Subdivision (d). Committee Notes on Rules2019 Amendment Amendments to Subdivision (d) change the words mailing and mails to sending and sends, and delete language requiring certain forms of service, to allow for electronic service. Other rules determine when a party or the clerk may or must send a notice electronically or non-electronically. Committee Notes on Rules2021 Amendment The notice of appeal is supposed to be a simple document that provides notice that a party is appealing and invokes the jurisdiction of the court of appeals. It therefore must state who is appealing, what is being appealed, and to what court the appeal is being taken. It is the role of the briefs, not the notice of appeal, to focus the issues on appeal. Because the jurisdiction of the court of appeals is established by statute, an appeal can be taken only from those district court decisions from which Congress has authorized an appeal. In most instances, that is the final judgment, see, e.g. see, e.g. However, some have interpreted this language as an invitation, if not a requirement, to designate each and every order of the district court that the appellant may wish to challenge on appeal. Such an interpretation overlooks a key distinction between the judgment or order on appealthe one serving as the basis of the courts appellate jurisdiction and from which time limits are calculatedand the various orders or decisions that may be reviewed on appeal because they merge into the judgment or order on appeal. Designation of the final judgment confers appellate jurisdiction over prior interlocutory orders that merge into the final judgment. The merger principle is a corollary of the final judgment rule: a party cannot appeal from most interlocutory orders, but must await final judgment, and only then obtain review of interlocutory orders on appeal from the final judgment. In an effort to avoid the misconception that it is necessary or appropriate to designate each and every order of the district court that the appellant may wish to challenge on appeal, Rule 3(c)(1) is amended to require the designation of the judgmentor the appealable orderfrom which the appeal is taken, and the phrase or part thereof is deleted. In most cases, because of the merger principle, it is appropriate to designate only the judgment. In other cases, particularly where an appeal from an interlocutory order is authorized, the notice of appeal must designate that appealable order. Whether due to misunderstanding or a misguided attempt at caution, some notices of appeal designate both the judgment and some particular order that the appellant wishes to challenge on appeal. A number of courts, using an expressio unius However, there are circumstances in which an appellant may deliberately choose to limit the scope of the notice of appeal, and it is desirable to enable the appellant to convey this deliberate choice to the other parties. To alert readers to the merger principle, a new provision is added to Rule 3(c): The notice of appeal encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal. The general merger rule can be stated simply: an appeal from a final judgment permits review of all rulings that led up to the judgment. Because this general rule is subject to some exceptions and complications, the amendment does not attempt to codify the merger principle but instead leaves its details to case law. The amendment does not change the principle established in Budinich v. Becton Dickinson & Co. See also Ray Haluch Gravel Co. v. Cent. Pension Fund of Intl Union of Operating Engrs & Participating Emp.s To remove the trap for the unwary, while enabling deliberate limitations of the notice of appeal, another new provision is added to Rule 3(c): An appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited. Without such an express statement, specific designations do not limit the scope of the notice of appeal. A related problem arises when a case is decided by a series of orders, sometimes separated by a year or more. For example, some claims might be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6), and then, after a considerable period for discovery, summary judgment under Fed. R. Civ. P. 56 is granted in favor of the defendant on the remaining claims. That second order, because it resolves all of the remaining claims, is a final judgment, and an appeal from that final judgment confers jurisdiction to review the earlier Fed. R. Civ. P. 12(b)(6) dismissal. But if a notice of appeal describes the second order, not as a final judgment, but as an order granting summary judgment, some courts would limit appellate review to the summary judgment and refuse to consider a challenge to the earlier Fed. R. Civ. P. 12(b)(6) dismissal. Similarly, if the district court complies with the separate document requirement of Fed. R. Civ. P. 58, and enters both an order granting summary judgment as to the remaining claims and a separate document denying all relief, but the notice of appeal designates the order granting summary judgment rather than the separate document, some courts would likewise limit appellate review to the summary judgment and refuse to consider a challenge to the earlier Fed. R. Civ. P. 12(b)(6) dismissal. This creates a trap for all but the most wary, because at the time that the district court issues the order disposing of all remaining claims, a litigant may not know whether the district court will ever enter the separate document required by Fed. R. Civ. P. 58. To remove this trap, a new provision is added to Rule 3(c): In a civil case, a notice of appeal encompasses the final judgment, whether or not that judgment is set out in a separate document under Federal Rule of Civil Procedure 58, if the notice designates . . . an order that adjudicates all remaining claims and the rights and liabilities of all remaining parties . ... Frequently, a party who is aggrieved by a final judgment will make a motion in the district court instead of filing a notice of appeal. Rule 4(a)(4) permits a party who makes certain motions to await disposition of those motions before appealing. But some courts treat a notice of appeal that designates only the order disposing of such a motion as limited to that order, rather than bringing the final judgment before the court of appeals for review. (Again, such an appeal might be brought before or after the judgment is set out in a separate document under Fed. R. Civ. P. 58.) To reduce the unintended loss of appellate rights in this situation, a new provision is added to Rule 3(c): In a civil case, a notice of appeal encompasses the final judgment, whether or not that judgment is set out in a separate document under Federal Rule of Civil Procedure 58, if the notice designates . . . an order described in Rule 4(a)(4)(A). This amendment does not alter the requirement of Rule 4(a)(4)(B)(ii) (requiring a notice of appeal or an amended notice of appeal if a party intends to challenge an order disposing of certain motions). Rule 3(c)(5) is limited to civil cases. Similar issues may arise in a small number of criminal cases, and similar treatment may be appropriate, but no inference should be drawn about how such issues should be handled in criminal cases. On occasion, a party may file a notice of appeal after a judgment but designate only a prior nonappealable decision that merged into that judgment. To deal with this situation, Rule 3(c)(7) provides that an appeal must not be dismissed for failure to properly designate the judgment if the notice of appeal was filed after entry of the judgment and designates an order that merged into that judgment. In this situation, a court should act as if the notice had properly designated the judgment. In determining whether a notice of appeal was filed after the entry of judgment, Rules 4(a)(2) and 4(b)(2) apply. The new provisions are added as Rules 3(c)(4), 3(c)(5), and 3(c)(6), with the existing Rules 3(c)(4) and 3(c)(5) renumbered. In addition, to reflect these changes to the rule, Form 1 is replaced by Forms 1A and 1B, and Form 2 is amended.  References in Text The Federal Rules of Civil Procedure, referred to in subd. (c)(5), are set out in this Appendix. [Rule 3.1. Appeal from a Judgment of a Magistrate Judge in a Civil Case] (Abrogated Apr. 24, 1998 Dec. 1, 1998  Committee Notes on Rules1998 Amendment The Federal Courts Improvement Act of 1996, Pub. L. No. 104317, repealed paragraphs (4) and (5) of 28 U.S.C.  636(c). That statutory change means that when parties consent to trial before a magistrate judge, appeal lies directly, and as a matter of right, to the court of appeals under  636(c)(3). The parties may not choose to appeal first to a district judge and thereafter seek discretionary review in the court of appeals. As a result of the statutory amendments, subdivision (a) of Rule 3.1 is no longer necessary. Since Rule 3.1 existed primarily because of the provisions in subdivision (a), subdivision (b) has been moved to Rule 3(a)(3) and Rule 3.1 has been abrogated. Rule 4. Appeal as of RightWhen Taken (a) Appeal in a Civil Case. (1)  Time for Filing a Notice of Appeal. (A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from. (B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is: (i) the United States; (ii) a United States agency; (iii) a United States officer or employee sued in an official capacity; or (iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States behalfincluding all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person. (C) An appeal from an order granting or denying an application for a writ of error coram nobis (2)  Filing Before Entry of Judgment. (3)  Multiple Appeals. (4)  Effect of a Motion on a Notice of Appeal. (A) If a party files in the district court any of the following motions under the Federal Rules of Civil Procedureand does so within the time allowed by those rulesthe time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: (i) for judgment under Rule 50(b); (ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment; (iii) for attorneys fees under Rule 54 if the district court extends the time to appeal under Rule 58; (iv) to alter or amend the judgment under Rule 59; (v) for a new trial under Rule 59; or (vi) for relief under Rule 60 if the motion is filed within the time allowed for filing a motion under Rule 59. (B) (i) If a party files a notice of appeal after the court announces or enters a judgmentbut before it disposes of any motion listed in Rule 4(a)(4)(A)the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered. (ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgments alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appealin compliance with Rule 3(c)within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion. (iii) No additional fee is required to file an amended notice. (5)  Motion for Extension of Time. (A) The district court may extend the time to file a notice of appeal if: (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause. (B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules. (C) No extension 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. (6)  Reopening the Time to File an Appeal. (A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; (B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and (C) the court finds that no party would be prejudiced. (7)  Entry Defined. (A) A judgment or order is entered for purposes of this Rule 4(a): (i) if Federal Rule of Civil Procedure 58(a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or (ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:  the judgment or order is set forth on a separate document, or  150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a). (B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order. (b) Appeal in a Criminal Case. (1)  Time for Filing a Notice of Appeal. (A) In a criminal case, a defendants notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the governments notice of appeal. (B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of: (i) the entry of the judgment or order being appealed; or (ii) the filing of a notice of appeal by any defendant. (2)  Filing Before Entry of Judgment. (3)  Effect of a Motion on a Notice of Appeal. (A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion: (i) for judgment of acquittal under Rule 29; (ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or (iii) for arrest of judgment under Rule 34. (B) A notice of appeal filed after the court announces a decision, sentence, or orderbut before it disposes of any of the motions referred to in Rule 4(b)(3)(A)becomes effective upon the later of the following: (i) the entry of the order disposing of the last such remaining motion; or (ii) the entry of the judgment of conviction. (C) A valid notice of appeal is effectivewithout amendmentto appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A). (4)  Motion for Extension of Time. (5)  Jurisdiction. (6)  Entry Defined. (c) Appeal by an Inmate Confined in an Institution. (1) If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institutions internal mail system on or before the last day for filing and: (A) it is accompanied by: (i) a declaration in compliance with 28 U.S.C.  1746or a notarized statementsetting out the date of deposit and stating that first-class postage is being prepaid; or (ii) evidence (such as a postmark or date stamp) showing that the notice was so deposited and that postage was prepaid; or (B) the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i). (2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice. (3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the district courts docketing of the defendants notice of appeal, whichever is later. (d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted. (As amended Apr. 30, 1979 Aug. 1, 1979 Pub. L. 100690, title VII,  7111 Nov. 18, 1988 102 Stat. 4419 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 27, 1995 Dec. 1, 1995 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2010 Dec. 1, 2010 Apr. 26, 2011 Dec. 1, 2011 Apr. 28, 2016 Dec. 1, 2016 Apr. 27, 2017 Dec. 1, 2017 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1967 Subdivision (a) North Umberland Mining Co. v. Standard Accident Ins. Co Cohen v. Plateau Natural Gas Co Plant Economy, Inc. v. Mirror Insulation Co Since this subdivision governs appeals in all civil cases, it supersedes the provisions of section 25 of the Bankruptcy Act (11 U.S.C.  48). Except in cases to which the United States or an officer or agency thereof is a party, the change is a minor one, since a successful litigant in a bankruptcy proceeding may, under section 25, oblige an aggrieved party to appeal within 30 days after entry of judgmentthe time fixed by this subdivision in cases involving private parties onlyby serving him with notice of entry on the day thereof, and by the terms of section 25 an aggrieved party must in any event appeal within 40 days after entry of judgment. No reason appears why the time for appeal in bankruptcy should not be the same as that in civil cases generally. Furthermore, section 25 is a potential trap for the uninitiated. The time for appeal which it provides is not applicable to all appeals which may fairly be termed appeals in bankruptcy. Section 25 governs only those cases referred to in section 24 as proceedings in bankruptcy and controversies arising in proceedings in bankruptcy. Lowenstein v. Reikes cert. den In view of the unification of the civil and admiralty procedure accomplished by the amendments of the Federal Rules of Civil Procedure effective July 1, 1966 The only other change possibly effected by this subdivision is in the time for appeal from a decision of a district court on a petition for impeachment of an award of a board of arbitration under the Act of May 20, 1926 44 Stat. 585 Subdivision (b). Notes of Advisory Committee on Rules1979 Amendment Subdivision (a)(1) The phrases within 30 days of such entry and within 60 days of such entry have been changed to read after instead of or. The change is for clarity only, since the word of in the present rule appears to be used to mean after. Since the proposed amended rule deals directly with the premature filing of a notice of appeal, it was thought useful to emphasize the fact that except as provided, the period during which a notice of appeal may be filed is the 30 days, or 60 days as the case may be, following the entry of the judgment or order appealed from. See Notes to Rule 4(a)(2) and (4), below. Subdivision (a)(2) Matter of Grand Jury Empanelled Jan. 21, 1975 Hodge v. Hodge Song Jook Suh v. Rosenberg Ruby v. Secretary of the Navy Firchau v. Diamond Natl Corp The proposed amended rule would recognize this practice but make an exception in cases in which a post trial motion has destroyed the finality of the judgment. See Note to Rule 4(a)(4) below. Subdivision (a)(4) Kieth v. Newcourt Stokes v. Peytons Inc The present rule, since it provides for the termination of the running of the appeal time, is ambiguous in its application to a notice of appeal filed prior to a post trial motion filed within the 10 day limit. The amendment would make it clear that in such circumstances the appellant should not proceed with the appeal during pendency of the motion but should file a new notice of appeal after the motion is disposed of. Subdivision (a)(5) A literal reading of this provision would require that the extension be ordered and the notice of appeal filed within the 30 day period, but despite the surface clarity of the rule, it has produced considerable confusion. See the discussion by Judge Friendly in In re Orbitek Under the present rule there is a possible implication that prior to the time the initial appeal time has run, the district court may extend the time on the basis of an informal application. The amendment would require that the application must be made by motion, though the motion may be made ex parte. After the expiration of the initial time a motion for the extension of the time must be made in compliance with the F.R.C.P. and local rules of the district court. See Note to proposed amended Rule 1, supra. And see Rules 6(d), 7(b) of the F.R.C.P. The proposed amended rule expands to some extent the standard for the grant of an extension of time. The present rule requires a showing of excusable neglect. While this was an appropriate standard in cases in which the motion is made after the time for filing the notice of appeal has run, and remains so, it has never fit exactly the situation in which the appellant seeks an extension before the expiration of the initial time. In such a case good cause, which is the standard that is applied in the granting of other extensions of time under Rule 26(b) seems to be more appropriate. Subdivision (a)(6) United States v. Indrelunas Bankers Trust Co. v. Mallis Notes of Advisory Committee on Rules1991 Amendment The amendment provides a limited opportunity for relief in circumstances where the notice of entry of a judgment or order, required to be mailed by the clerk of the district court pursuant to Rule 77(d) of the Federal Rules of Civil Procedure, is either not received by a party or is received so late as to impair the opportunity to file a timely notice of appeal. The amendment adds a new subdivision (6) allowing a district court to reopen for a brief period the time for appeal upon a finding that notice of entry of a judgment or order was not received from the clerk or a party within 21 days of its entry and that no party would be prejudiced. By prejudice the Committee means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal. Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal. Reopening may be ordered only upon a motion filed within 180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier. This provision establishes an outer time limit of 180 days for a party who fails to receive timely notice of entry of a judgment to seek additional time to appeal and enables any winning party to shorten the 180-day period by sending (and establishing proof of receipt of) its own notice of entry of a judgment, as authorized by Fed. R. Civ. P. 77(d). Winning parties are encouraged to send their own notice in order to lessen the chance that a judge will accept a claim of non-receipt in the face of evidence that notices were sent by both the clerk and the winning party. Receipt of a winning partys notice will shorten only the time for reopening the time for appeal under this subdivision, leaving the normal time periods for appeal unaffected. If the motion is granted, the district court may reopen the time for filing a notice of appeal only for a period of 14 days from the date of entry of the order reopening the time for appeal. Notes of Advisory Committee on Rules1993 Amendment Note to Paragraph (a)(1). The amendment is intended to alert readers to the fact that paragraph (a)(4) extends the time for filing an appeal when certain posttrial motions are filed. The Committee hopes that awareness of the provisions of paragraph (a)(4) will prevent the filing of a notice of appeal when a posttrial tolling motion is pending. Note to Paragraph (a)(2). The amendment treats a notice of appeal filed after the announcement of a decision or order, but before its formal entry, as if the notice had been filed after entry. The amendment deletes the language that made paragraph (a)(2) inapplicable to a notice of appeal filed after announcement of the disposition of a posttrial motion enumerated in paragraph (a)(4) but before the entry of the order, see Acosta v. Louisiana Dept of Health & Human Resources Alerte v. McGinnis Note to Paragraph (a)(3). The amendment is technical in nature; no substantive change is intended. Note to Paragraph (a)(4). The 1979 amendment of this paragraph created a trap for an unsuspecting litigant who files a notice of appeal before a posttrial motion, or while a posttrial motion is pending. The 1979 amendment requires a party to file a new notice of appeal after the motions disposition. Unless a new notice is filed, the court of appeals lacks jurisdiction to hear the appeal. Griggs v. Provident Consumer Discount Co See, e.g., Averhart v. Arrendondo Harcon Barge Co. v. D & G Boat Rentals, Inc cert. denied The amendment provides that a notice of appeal filed before the disposition of a specified posttrial motion will become effective upon disposition of the motion. A notice filed before the filing of one of the specified motions or after the filing of a motion but before disposition of the motion is, in effect, suspended until the motion is disposed of, whereupon, the previously filed notice effectively places jurisdiction in the court of appeals. Because a notice of appeal will ripen into an effective appeal upon disposition of a posttrial motion, in some instances there will be an appeal from a judgment that has been altered substantially because the motion was granted in whole or in part. Many such appeals will be dismissed for want of prosecution when the appellant fails to meet the briefing schedule. But, the appellee may also move to strike the appeal. When responding to such a motion, the appellant would have an opportunity to state that, even though some relief sought in a posttrial motion was granted, the appellant still plans to pursue the appeal. Because the appellants response would provide the appellee with sufficient notice of the appellants intentions, the Committee does not believe that an additional notice of appeal is needed. The amendment provides that a notice of appeal filed before the disposition of a posttrial tolling motion is sufficient to bring the underlying case, as well as any orders specified in the original notice, to the court of appeals. If the judgment is altered upon disposition of a posttrial motion, however, and if a party wishes to appeal from the disposition of the motion, the party must amend the notice to so indicate. When a party files an amended notice, no additional fees are required because the notice is an amendment of the original and not a new notice of appeal. Paragraph (a)(4) is also amended to include, among motions that extend the time for filing a notice of appeal, a Rule 60 motion that is served within 10 days after entry of judgment. This eliminates the difficulty of determining whether a posttrial motion made within 10 days after entry of a judgment is a Rule 59(e) motion, which tolls the time for filing an appeal, or a Rule 60 motion, which historically has not tolled the time. The amendment comports with the practice in several circuits of treating all motions to alter or amend judgments that are made within 10 days after entry of judgment as Rule 59(e) motions for purposes of Rule 4(a)(4). See, e.g., Finch v. City of Vernon Rados v. Celotex Corp Skagerberg v. Oklahoma Budinich v. Becton Dickinson and Co Note to subdivision (b). The amendment grammatically restructures the portion of this subdivision that lists the types of motions that toll the time for filing an appeal. This restructuring is intended to make the rule easier to read. No substantive change is intended other than to add a motion for judgment of acquittal under Criminal Rule 29 to the list of tolling motions. Such a motion is the equivalent of a Fed. R. Civ. P. 50(b) motion for judgment notwithstanding the verdict, which tolls the running of time for an appeal in a civil case. The proposed amendment also eliminates an ambiguity from the third sentence of this subdivision. Prior to this amendment, the third sentence provided that if one of the specified motions was filed, the time for filing an appeal would run from the entry of an order denying the motion. That sentence, like the parallel provision in Rule 4(a)(4), was intended to toll the running of time for appeal if one of the posttrial motions is timely filed. In a criminal case, however, the time for filing the motions runs not from entry of judgment (as it does in civil cases), but from the verdict or finding of guilt. Thus, in a criminal case, a posttrial motion may be disposed of more than 10 days before sentence is imposed, i.e. before the entry of judgment. United States v. Hashagen denying disposing of the last such motion outstanding The amendment also states that a notice of appeal filed before the disposition of any of the posttrial tolling motions becomes effective upon disposition of the motions. In most circuits this language simply restates the current practice. See United States v. Cortes cert. denied see United States v. Gargano United States v. Jones Subdivision (b) is further amended in light of new Fed. R. Crim. P. 35(c), which authorizes a sentencing court to correct any arithmetical, technical, or other clear errors in sentencing within 7 days after imposing the sentence. The Committee believes that a sentencing court should be able to act under Criminal Rule 35(c) even if a notice of appeal has already been filed; and that a notice of appeal should not be affected by the filing of a Rule 35(c) motion or by correction of a sentence under Rule 35(c). Note to subdivision (c). In Houston v. Lack pro se Permitting an inmate to file a notice of appeal by depositing it in an institutional mail system requires adjustment of the rules governing the filing of cross-appeals. In a civil case, the time for filing a cross-appeal ordinarily runs from the date when the first notice of appeal is filed. If an inmates notice of appeal is filed by depositing it in an institutions mail system, it is possible that the notice of appeal will not arrive in the district court until several days after the filing date and perhaps even after the time for filing a cross-appeal has expired. To avoid that problem, subdivision (c) provides that in a civil case when an institutionalized person files a notice of appeal by depositing it in the institutions mail system, the time for filing a cross-appeal runs from the district courts receipt of the notice. The amendment makes a parallel change regarding the time for the government to appeal in a criminal case. Notes of Advisory Committee on Rules1995 Amendment Subdivision (a) The Civil Rules require the filing of postjudgment motions no later than 10 days after entry of judgmentrather than within 10 daysto include postjudgment motions that are filed before actual entry of the judgment by the clerk. This rule is amended, therefore, to use the same terminology. The rule is further amended to clarify the fact that a party who wants to obtain review of an alteration or amendment of a judgment must file a notice of appeal or amend a previously filed notice to indicate intent to appeal from the altered judgment. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only; in this rule, however, substantive changes are made in paragraphs (a)(6) and (b)(4), and in subdivision (c). Subdivision (a), paragraph (1). Subdivision (a), paragraph (4). Subdivision (a), paragraph (6). Subdivision (b). Subdivision (c). When an inmate uses the filing method authorized by subdivision (c), the current rule provides that the time for other parties to appeal begins to run from the date the district court receives the inmates notice of appeal. The rule is amended so that the time for other parties begins to run when the district court dockets the inmates appeal. A court may receive a paper when its mail is delivered to it even if the mail is not processed for a day or two, making the date of receipt uncertain. Docketing is an easily identified event. The change eliminates uncertainty. Paragraph (c)(3) is further amended to make it clear that the time for the government to file its appeal runs from the later of the entry of the judgment or order appealed from or the district courts docketing of a defendants notice filed under this paragraph (c). Committee Notes on Rules2002 Amendment Subdivision (a)(1)(C). coram nobis Compare United States v. Craig amended United States v. Cooper United States v. Keogh with Yasui v. United States United States v. Mills Subsequent to the enactment of Fed. R. Civ. P. 60(b) and 28 U.S.C.  2255, the Supreme Court has recognized the continued availability of a writ of error coram nobis coram nobis United States v. Morgan Morgan coram nobis Id coram nobis Morgan coram nobis Notwithstanding Morgan coram nobis Carlisle v. United States United States v. Smith Rule 4(a)(1)(C) applies only to motions that are in substance, and not merely in form, applications for writs of error coram nobis coram nobis Changes Made After Publication and Comments. Subdivision (a)(4)(A)(vi). Changes Made After Publication and Comments. Subdivision (a)(5)(A)(ii). Despite the text of Rule 4(a)(5)(A), most of the courts of appeals have held that the good cause standard applies only to motions brought prior to the expiration of the original deadline and that the excusable neglect standard applies only to motions brought during the 30 days following the expiration of the original deadline. See Pontarelli v. Stone See Charles Alan Wright, et al., Federal Practice and Procedure The failure of the courts of appeals to apply Rule 4(a)(5)(A) as written has also created tension between that rule and Rule 4(b)(4). As amended in 1998, Rule 4(b)(4) permits the district court to extend the time for filing a notice of appeal in a criminal Rule 4(a)(5)(A)(ii) has been amended to correct this misunderstanding and to bring the rule in harmony in this respect with Rule 4(b)(4). A motion for an extension filed prior to the expiration of the original deadline may be granted if the movant shows either excusable neglect or good cause. Likewise, a motion for an extension filed during the 30 days following the expiration of the original deadline may be granted if the movant shows either excusable neglect or good cause. The good cause and excusable neglect standards have different domains. Lorenzen v. Employees Retirement Plan Thus, the good cause standard can apply to motions brought during the 30 days following the expiration of the original deadline. If, for example, the Postal Service fails to deliver a notice of appeal, a movant might have good cause to seek a post-expiration extension. It may be unfair to make such a movant prove that its neglect was excusable, given that the movant may not have been neglectful at all. Similarly, the excusable neglect standard can apply to motions brought prior to the expiration of the original deadline. For example, a movant may bring a pre-expiration motion for an extension of time when an error committed by the movant makes it unlikely that the movant will be able to meet the original deadline. Changes Made After Publication and Comments. Subdivision (a)(7). 1. The first circuit split addressed by the amendments to Rule 4(a)(7) and Fed. R. Civ. P. 58 concerns the extent to which orders that dispose of post-judgment motions must be set forth on separate documents. Under Rule 4(a)(4)(A), the filing of certain post-judgment motions tolls the time to appeal the underlying judgment until the entry of the order disposing of the last such remaining motion. Courts have disagreed about whether such an order must be set forth on a separate document before it is treated as entered. This disagreement reflects a broader dispute among courts about whether Rule 4(a)(7) independently imposes a separate document requirement (a requirement that is distinct from the separate document requirement that is imposed by the Federal Rules of Civil Procedure (FRCP)) or whether Rule 4(a)(7) instead incorporates the separate document requirement as it exists in the FRCP. Further complicating the matter, courts in the former camp disagree among themselves about the scope of the separate document requirement that they interpret Rule 4(a)(7) as imposing, and courts in the latter camp disagree among themselves about the scope of the separate document requirement imposed by the FRCP. Rule 4(a)(7) has been amended to make clear that it simply incorporates the separate document requirement as it exists in Fed. R. Civ. P. 58. If Fed. R. Civ. P. 58 does not require that a judgment or order be set forth on a separate document, then neither does Rule 4(a)(7); the judgment or order will be deemed entered for purposes of Rule 4(a) when it is entered in the civil docket. If Fed. R. Civ. P. 58 requires that a judgment or order be set forth on a separate document, then so does Rule 4(a)(7); the judgment or order will not be deemed entered for purposes of Rule 4(a) until it is so set forth and entered in the civil docket (with one important exception, described below). In conjunction with the amendment to Rule 4(a)(7), Fed. R. Civ. P. 58 has been amended to provide that orders disposing of the post-judgment motions listed in new Fed. R. Civ. P. 58(a)(1) (which post-judgment motions include, but are not limited to, the post-judgment motions that can toll the time to appeal under Rule 4(a)(4)(A)) do not have to be set forth on separate documents. See See 2. The second circuit split addressed by the amendments to Rule 4(a)(7) and Fed. R. Civ. P. 58 concerns the following question: When a judgment or order is required to be set forth on a separate document under Fed. R. Civ. P. 58 but is not, does the time to appeal the judgment or orderor the time to bring post-judgment motions, such as a motion for a new trial under Fed. R. Civ. P. 59ever begin to run? According to every circuit except the First Circuit, the answer is no. The First Circuit alone holds that parties will be deemed to have waived their right to have a judgment or order entered on a separate document three months after the judgment or order is entered in the civil docket. See Fiore v. Washington County Community Mental Health Ctr. See, e.g., United States v. Haynes Hammack v. Baroid Corp. Rubin v. Schottenstein, Zox & Dunn vacated on other grounds Both Rule 4(a)(7)(A) and Fed. R. Civ. P. 58 have been amended to impose such a cap. Under the amendments, a judgment or order is generally treated as entered when it is entered in the civil docket pursuant to Fed. R. Civ. P. 79(a). There is one exception: When Fed. R. Civ. P. 58(a)(1) requires the judgment or order to be set forth on a separate document, that judgment or order is not treated as entered until it is set forth on a separate document (in addition to being entered in the civil docket) or until the expiration of 150 days after its entry in the civil docket, whichever occurs first. This cap will ensure that parties will not be given forever to appeal (or to bring a post-judgment motion) when a court fails to set forth a judgment or order on a separate document in violation of Fed. R. Civ. P. 58(a)(1). 3. The third circuit splitthis split addressed only by the amendment to Rule 4(a)(7)concerns whether the appellant may waive the separate document requirement over the objection of the appellee. In Bankers Trust Co. v. Mallis Id Courts have disagreed about whether the consent of all parties is necessary to waive the separate document requirement. Some circuits permit appellees to object to attempted Mallis See, e.g., Selletti v. Carey Williams v. Borg Silver Star Enters., Inc. v. M/V Saramacca Mallis See, e.g., Haynes Miller v. Artistic Cleaners Alvord-Polk, Inc. v. F. Schumacher & Co. New Rule 4(a)(7)(B) is intended both to codify the Supreme Courts holding in Mallis 4. The final circuit split addressed by the amendment to Rule 4(a)(7) concerns the question whether an appellant who chooses to waive the separate document requirement must appeal within 30 days (60 days if the government is a party) from the entry in the civil docket of the judgment or order that should have been set forth on a separate document but was not. In Townsend v. Lucas May 6, 1983 January 10, 1984 Id Townsend See, e.g., Armstrong v. Ahitow Hughes v. Halifax County Sch. Bd. Harris v. McCarthy Those cases are in the distinct minority. There are numerous cases in which courts have heard appeals that were not filed within 30 days (60 days if the government was a party) from the judgment or order that should have been set forth on a separate document but was not. See, e.g., Haynes Clough v. Rush McCalden v. California Library Assn Townsend Mallis Charles Alan Wright et al., Federal Practice and Procedure The Committee agrees with the majority of courts that have rejected the Townsend Townsend Changes Made After Publication and Comments. Two major changes were made to the text of proposed Rule 4(a)(7)(A)one substantive and one stylistic. The substantive change was to increase the cap from 60 days to 150 days. The Appellate Rules Committee and the Civil Rules Committee had to balance two concerns that are implicated whenever a court fails to enter its final decision on a separate document. On the one hand, potential appellants need a clear signal that the time to appeal has begun to run, so that they do not unknowingly forfeit their rights. On the other hand, the time to appeal cannot be allowed to run forever. A party who receives no notice whatsoever of a judgment has only 180 days to move to reopen the time to appeal from that judgment. See does some The 150-day cap properly balances these two concerns. When an order is not set forth on a separate document, what signals litigants that the order is final and appealable is a lack of further activity from the court. A 60-day period of inactivity is not sufficiently rare to signal to litigants that the court has entered its last order. By contrast, 150 days of inactivity is much less common and thus more clearly signals to litigants that the court is done with their case. The major stylistic change to Rule 4(a)(7) requires some explanation. In the published draft, proposed Rule 4(a)(7)(A) provided that [a] judgment or order is entered for purposes of this Rule 4(a) when it is entered for purposes of Rule 58(b) of the Federal Rules of Civil Procedure. In other words, Rule 4(a)(7)(A) told readers to look to FRCP 58(b) to ascertain when a judgment is entered for purposes of starting the running of time to appeal. Sending appellate lawyers to the civil rules to discover when time began to run for purposes of the appellate rules was itself somewhat awkward, but it was made more confusing by the fact that, when readers went to proposed FRCP 58(b), they found this introductory clause: Judgment is entered for purposes of Rules 50, 52, 54(d)(2)(B), 59, 60, and 62 when ... This introductory clause was confusing for both appellate lawyers and trial lawyers. It was confusing for appellate lawyers because Rule 4(a)(7) informed them that FRCP 58(b) would tell them when the time begins to run for purposes of the appellate civil To avoid this confusion, the Civil Rules Committee, on the recommendation of the Appellate Rules Committee, changed the introductory clause in FRCP 58(b) to read simply: Judgment is entered for purposes of these Rules We do not believe that republication of Rule 4(a)(7) or FRCP 58 is necessary. In substance Subdivision (b)(5). See, e.g., United States v. Carmouche United States v. Morillo Rule 4(b)(5) has been amended to eliminate the inconsistency concerning the effect of a motion to correct a sentence on the time for filing a notice of appeal. The amended rule makes clear that the time to appeal continues to run, even if a motion to correct a sentence is filed. The amendment is consistent with Rule 4(b)(3)(A), which lists the motions that toll the time to appeal, and notably omits any mention of a Fed. R. Crim. P. 35(a) motion. The amendment also should promote certainty and minimize the likelihood of confusion concerning the time to appeal a judgment of conviction. If a district court corrects a sentence pursuant to Fed. R. Crim. P. 35(a), the time for filing a notice of appeal of the corrected sentence under Rule 4(b)(1) would begin to run when the court enters a new judgment reflecting the corrected sentence. Changes Made After Publication and Comments. Committee Notes on Rules2005 Amendment Rule 4(a)(6) has permitted a district court to reopen the time to appeal a judgment or order upon finding that four conditions were satisfied. First, the district court had to find that the appellant did not receive notice of the entry of the judgment or order from the district court or any party within 21 days after the judgment or order was entered. Second, the district court had to find that the appellant moved to reopen the time to appeal within 7 days after the appellant received notice of the entry of the judgment or order. Third, the district court had to find that the appellant moved to reopen the time to appeal within 180 days after the judgment or order was entered. Finally, the district court had to find that no party would be prejudiced by the reopening of the time to appeal. Rule 4(a)(6) has been amended to specify more clearly what type of notice of the entry of a judgment or order precludes a party from later moving to reopen the time to appeal. In addition, Rule 4(a)(6) has been amended to address confusion about what type of notice triggers the 7-day period to bring a motion to reopen. Finally, Rule 4(a)(6) has been reorganized to set forth more logically the conditions that must be met before a district court may reopen the time to appeal. Subdivision (a)(6)(A). The reasons for this change take some explanation. Prior to 1998, former subdivision (a)(6)(B) permitted a district court to reopen the time to appeal if it found that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry. The rule was clear that the notice to which it referred was the notice required under Civil Rule 77(d), which must be served by the clerk pursuant to Civil Rule 5(b) and may also be served by a party pursuant to that same rule. In other words, prior to 1998, former subdivision (a)(6)(B) was clear that, if a party did not receive formal notice of the entry of a judgment or order under Civil Rule 77(d), that party could later move to reopen the time to appeal (assuming that the other requirements of subdivision (a)(6) were met). In 1998, former subdivision (a)(6)(B) was amended to change the description of the type of notice that would preclude a party from moving to reopen. As a result of the amendment, former subdivision (a)(6)(B) no longer referred to the failure of the moving party to receive  such the clerk district court The 1998 amendment meant, then, that the type of notice that precluded a party from moving to reopen the time to appeal was no longer limited to Civil Rule 77(d) notice. Under the 1998 amendment, some To avoid such problems, former subdivision (a)(6)(B)new subdivision (a)(6)(A)has been amended to restore its pre-1998 simplicity. Under new subdivision (a)(6)(A), if the court finds that the moving party was not notified under Civil Rule 77(d) of the entry of the judgment or order that the party seeks to appeal within 21 days after that judgment or order was entered, then the court is authorized to reopen the time to appeal (if all of the other requirements of subdivision (a)(6) are met). Because Civil Rule 77(d) requires that notice of the entry of a Judgment or order be formally served under Civil Rule 5(b), any notice that is not so served will not operate to preclude the reopening of the time to appeal under new subdivision (a)(6)(A). Subdivision (a)(6)(B). The circuits have been split over what type of notice is sufficient to trigger the 7-day period. The majority of circuits that addressed the question held that only written See, e.g., Bass v. United States Dept of Agric. Nguyen v. Southwest Leasing & Rental, Inc. See, e.g., Lowry v. McDonnell Douglas Corp. see Benavides v. Bureau of Prisons see Ryan v. First Unum Life Ins. Co. Former subdivision (a)(6)(A)new subdivision (a)(6)(B)has been amended to resolve this circuit split by providing that only formal notice of the entry of a judgment or order under Civil Rule 77(d) will trigger the 7-day period. Using Civil Rule 77(d) notice as the trigger has two advantages: First, because Civil Rule 77(d) is clear and familiar, circuit splits are unlikely to develop over its meaning. Second, because Civil Rule 77(d) notice must be served under Civil Rule 5(b), establishing whether and when such notice was provided should generally not be difficult. Using Civil Rule 77(d) notice to trigger the 7-day period will not unduly delay appellate proceedings. Rule 4(a)(6) applies to only a small number of casescases in which a party was not notified of a judgment or order by either the clerk or another party within 21 days after entry. Even with respect to those cases, an appeal cannot be brought more than 180 days after entry, no matter what the circumstances. In addition, Civil Rule 77(d) permits parties to serve notice of the entry of a judgment or order. The winning party can prevent Rule 4(a)(6) from even coming into play simply by serving notice of entry within 21 days. Failing that, the winning party can always trigger the 7-day deadline to move to reopen by serving belated notice. Changes Made After Publication and Comments. A substantial change was made to subdivision (B)regarding the type of notice that triggers the 7-day deadline for moving to reopen the time to appeal. Under the published version of subdivision (B), the 7-day deadline would have been triggered when the moving party receives or observes written notice of the entry from any source. The Committee was attempting to implement an eyes/ears distinction: The 7-day period was triggered when a party learned of the entry of a judgment or order by reading about it (whether on a piece of paper or a computer screen), but was not triggered when a party merely heard about it. Above all else, subdivision (B) should be clear and easy to apply; it should neither risk opening another circuit split over its meaning nor create the need for a lot of factfinding by district courts. After considering the public commentsand, in particular, the comments of two committees of the California barthe Committee decided that subdivision (B) could do better on both counts. The published standardreceives or observes written notice of the entry from any sourcewas awkward and, despite the guidance of the Committee Note, was likely to give courts problems. Even if the standard had proved to be sufficiently clear, district courts would still have been left to make factual findings about whether a particular attorney or party received or observed notice that was written or electronic. The Committee concluded that the solution suggested by the California barusing Civil Rule 77(d) notice to trigger the 7-day periodmade a lot of sense. The standard is clear; no one doubts what it means to be served with notice of the entry of judgment under Civil Rule 77(d). The standard is also unlikely to give rise to many factual disputes. Civil Rule 77(d) notice must be formally served under Civil Rule 5(b), so establishing the presence or absence of such notice should be relatively easy. And, for the reasons described in the Committee Note, using Civil Rule 77(d) as the trigger will not unduly delay appellate proceedings. For these reasons, the Committee amended subdivision (B) so that the 7-day deadline will be triggered only by notice of the entry of a judgment or order that is served under Civil Rule 77(d). (Corresponding changes were made to the Committee Note.) The Committee does not believe that the amendment needs to be published again for comment, as the issue of what type of notice should trigger the 7-day deadline has already been addressed by commentators, the revised version of subdivision (B) is far more forgiving than the published version, and it is highly unlikely that the revised version will be found ambiguous in any respect. Committee Notes on Rules2009 Amendment Subdivision (a)(4)(B)(ii). Prior to the restyling, subdivision (a)(4) instructed that [a]ppellate review of an order disposing of any of [the post-trial motions listed in subdivision (a)(4)] requires the party, in compliance with Appellate Rule 3(c), to amend a previously filed notice of appeal. A party intending to challenge an alteration or amendment of the judgment shall file a notice, or amended notice, of appeal within the time prescribed by this Rule 4 measured from the entry of the order disposing of the last such motion outstanding. After the restyling, subdivision (a)(4)(B)(ii) provided: A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appealin compliance with Rule 3(c)within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion. One court has explained that the 1998 amendment introduced ambiguity into the Rule: The new formulation could be read to expand the obligation to file an amended notice to circumstances where the ruling on the post-trial motion alters the prior judgment in an insignificant manner or in a manner favorable to the appellant, even though the appeal is not directed against the alteration of the judgment. Sorensen v. City of New York Changes Made After Publication and Comment. Subdivision (a)(4)(A)(vi). Subdivision (a)(5)(C). Subdivision (a)(6)(B). Subdivisions (b)(1)(A) and (b)(3)(A). Committee Notes on Rules2010 Amendment Subdivision (a)(7). The amendments are technical and conforming. In accordance with established Judicial Conference procedures they were not published for public comment. Committee Notes on Rules2011 Amendment Subdivision (a)(1)(B). The amendment to Rule 4(a)(1)(B) is consistent with a 2000 amendment to Civil Rule 12(a)(3), which specified an extended 60-day period to respond to complaints when [a] United States officer or employee [is] sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States behalf. The Committee Note to the 2000 amendment explained: Time is needed for the United States to determine whether to provide representation to the defendant officer or employee. If the United States provides representation, the need for an extended answer period is the same as in actions against the United States, a United States agency, or a United States officer sued in an official capacity. However, because of the greater need for clarity of application when appeal rights are at stake, the amendment to Rule 4(a)(1)(B), and the corresponding legislative amendment to 28 U.S.C.  2107 that is simultaneously proposed, include safe harbor provisions that parties can readily apply and rely upon. Under new subdivision 4(a)(1)(B)(iv), a case automatically qualifies for the 60-day appeal period if (1) a legal officer of the United States has appeared in the case, in an official capacity, as counsel for the current or former officer or employee and has not withdrawn the appearance at the time of the entry of the judgment or order appealed from or (2) a legal officer of the United States appears on the notice of appeal as counsel, in an official capacity, for the current or former officer or employee. There will be cases that do not fall within either safe harbor but that qualify for the longer appeal period. An example would be a case in which a federal employee is sued in an individual capacity for an act occurring in connection with federal duties and the United States does not represent the employee either when the judgment is entered or when the appeal is filed but the United States pays for private counsel for the employee. Changes Made After Publication and Comment. First, the Committee inserted the words current or former before United States officer or employee. This insertion causes the text of the proposed Rule to diverge slightly from that of Civil Rules 4(i)(3) and 12(a)(3), which refer simply to a United States officer or employee [etc.]. This divergence, though, is only stylistic. The 2000 Committee Notes to Civil Rules 4(i)(3) and 12(a)(3) make clear that those rules are intended to encompass former as well as current officers or employees. It is desirable to make this clarification in the text of Rule 4(a)(1) because that Rules appeal time periods are jurisdictional. Second, the Committee added, at the end of Rule 4(a)(1)(B)(iv), the following new language: including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person. During the public comment period, concerns were raised that a party might rely on the longer appeal period, only to risk the appeal being held untimely by a court that later concluded that the relevant act or omission had not actually occurred in connection with federal duties. The Committee decided to respond to this concern by adding two safe harbor provisions. These provisions make clear that the longer appeal periods apply in any case where the United States either represents the officer or employee at the time of entry of the relevant judgment or files the notice of appeal on the officer or employees behalf. Committee Notes on Rules2016 Amendment Subdivision (a)(4) National Ecological Foundation v. Alexander Subdivision (c)(1) The Rule requires the inmate to show timely deposit and prepayment of postage. The Rule is amended to specify that a notice is timely if it is accompanied by a declaration or notarized statement stating the date the notice was deposited in the institutions mail system and attesting to the prepayment of first-class postage. The declaration must state that first-class postage is being prepaid, not (as directed by the former Rule) that first-class postage has been prepaid. This change reflects the fact that inmates may need to rely upon the institution to affix postage after the inmate has deposited the document in the institutions mail system. New Form 7 in the Appendix of Forms sets out a suggested form of the declaration. The amended rule also provides that a notice is timely without a declaration or notarized statement if other evidence accompanying the notice shows that the notice was deposited on or before the due date and that postage was prepaid. If the notice is not accompanied by evidence that establishes timely deposit and prepayment of postage, then the court of appeals has discretion to accept a declaration or notarized statement at a later date. The Rule uses the phrase exercises its discretion to permitrather than simply permitsto help ensure that pro se inmate litigants are aware that a court will not necessarily forgive a failure to provide the declaration initially. Committee Notes on Rules2017 Amendment Subdivision (a)(4)(B)(iii) Committee Notes on Rules2023 Amendment The amendment is designed to make Rule 4 operate smoothly with Emergency Civil Rule 6(b)(2) if that emergency Civil Rule is ever in effect, while not making any change to the operation of Rule 4 at any other time. It does this by replacing the phrase no later than 28 days after the judgment is entered in Rule 4(a)(4)(A)(vi) with the phrase within the time allowed for filing a motion under Rule 59. Certain post-judgment motionsfor example, a renewed motion for judgment as a matter of law under Civil Rule 50(b) and a motion for a new trial under Civil Rule 59may be made in the district court shortly after judgment is entered. Recognizing that it makes sense to await the district courts decision on these motions before pursuing an appeal, Rule 4(a)(4)(A) resets the time to appeal from the judgment so that it does not run until entry of an order disposing of the last such motion. Rule 4 gives this resetting effect only to motions that are filed within the time allowed by the Civil Rules. For most of these motions, the Civil Rules require that the motion be filed within 28 days of the judgment. See Civil Rules 50(b) and (d), 52(b), 59(b), (d), and (e). The time requirements for a Civil Rule 60(b) motion, however, are notably different. It must be filed within a reasonable time, and for certain Civil Rule 60(b) motions, no more than a year after judgment. For this reason, Rule 4 does not give resetting effect to all Civil Rule 60(b) motions that are filed within the time allowed by the Civil Rules, but only to those Civil Rule 60(b) motions that are filed within 28 days of the entry of judgment. That is why most of the motions listed in Rule 4(a)(4)(A) are governed simply by the general requirement that they be filed within the time allowed by the Civil Rules, but Rule 4(a)(4)(A)(vi) adds the requirement that a Civil Rule 60(b) motion has resetting effect only if filed no later than 28 days after the judgment is entered. Significantly, Civil Rule 6(b)(2) prohibits the district court from extending the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b). That means that when Rule 4 requires that a motion be filed within the time allowed by the Civil Rules, the time allowed by those Rules for motions under Rules 50(b) and (d), 52(b), 59(b), (d), and (e) will be 28 daysmatching the 28-day requirement in Rule 4(a)(4)(A)(vi) applicable to Rule 60(b) motions. However, Emergency Civil Rule 6(b)(2)which would be operative only if the Judicial Conference of the United States were to declare a Civil Rules emergency under Civil Rule 87authorizes district courts to grant extensions that they are otherwise prohibited from granting. If that emergency Civil Rule is in effect, district courts may grant extensions to file motions under Civil Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b). For all these motions except Civil Rule 60(b) motions, Rule 4 works seamlessly. Rule 4 requires only that those motions be filed within the time allowed by the Civil Rules, and a motion filed within a properly granted extension is filed within the time allowed by those rules. An emergency Civil Rule is no less a Civil Rule simply because it is operative only in a Civil Rules emergency. Without amendment, Rule 4 would not work seamlessly with the Emergency Civil Rule for Rule 60(b) motions because the 28-day requirement in Rule 4(a)(4)(A)(vi) would not correspond to the extended time to file other resetting motions. For this reason, the amendment replaces the phrase if the motion is filed 1 1 At all times that no Civil Rules emergency has been declared, the amended Rule 4 functions exactly as it did prior to the amendment. A Civil Rule 60(b) motion has resetting effect only if it is filed within the time allowed for filing a motion under Civil Rule 59which is 28 days. When a Civil Rules emergency has been declared, however, if a district court grants an extension of time to file a Civil Rule 59 motion and a party files a Civil Rule 60(b) motion, that Civil Rule 60(b) motion has resetting effect so long as it is filed within the extended time set for filing a Civil Rule 59 motion. The Civil Rule 60(b) motion has this resetting effect even if no Civil Rule 59 motion is filed.  References in Text The Federal Rules of Civil Procedure, referred to in subd. (a)(4), (6), (7), are set out in this Appendix. The Federal Rules of Criminal Procedure, referred to in subd. (b)(3), (5), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. Amendment by Public Law 1988Subd. (b). Pub. L. 100690 Rule 5. Appeal by Permission (a) Petition for Permission to Appeal. (1) To request permission to appeal when an appeal is within the court of appeals discretion, a party must file a petition with the circuit clerk and serve it on all other parties to the district-court action. (2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal. (3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a partys motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order. (b) Contents of the Petition; Answer or Cross-Petition; Oral Argument. (1) The petition must include the following: (A) the facts necessary to understand the question presented; (B) the question itself; (C) the relief sought; (D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and (E) an attached copy of: (i) the order, decree, or judgment complained of and any related opinion or memorandum, and (ii) any order stating the district courts permission to appeal or finding that the necessary conditions are met. (2) A party may file an answer in opposition or a cross-petition within 10 days after the petition is served. (3) The petition and answer will be submitted without oral argument unless the court of appeals orders otherwise. (c) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case. Except by the courts permission, and excluding the accompanying documents required by Rule 5(b)(1)(E): (1) a paper produced using a computer must not exceed 5,200 words; and (2) a handwritten or typewritten paper must not exceed 20 pages. (d) Grant of Permission; Fees; Cost Bond; Filing the Record. (1) Within 14 days after the entry of the order granting permission to appeal, the appellant must: (A) pay the district clerk all required fees; and (B) file a cost bond if required under Rule 7. (2) A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules. (3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c). (As amended Apr. 30, 1979 Aug. 1, 1979 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2016 Dec. 1, 2016 Apr. 25, 2019 Dec. 1, 2019  Notes of Advisory Committee on Rules1967 This rule is derived in the main from Third Circuit Rule 11(2), which is similar to the rule governing appeals under 28 U.S.C.  1292(b) in a majority of the circuits. The second sentence of subdivision (a) resolves a conflict over the question of whether the district court can amend an order by supplying the statement required by  1292(b) at any time after entry of the order, with the result that the time fixed by the statute commences to run on the date of entry of the order as amended. Compare Milbert v. Bison Laboratories Sperry Rand Corporation v. Bell Telephone Laboratories Hadjipateras v. Pacifica, S.A Houston Fearless Corporation v. Teter Notes of Advisory Committee on Rules1979 Amendment The proposed amendment adapts to the practice in appeals from interlocutory orders under 28 U.S.C.  1292(b) the provisions of proposed Rule 3(e) above, requiring payment of all fees in the district court upon the filing of the notice of appeal. See Note to proposed amended Rule 3(e), supra. Notes of Advisory Committee on Rules1994 Amendment Subdivision (c) Committee Notes on Rules1998 Amendment In 1992 Congress added subsection (e) to 28 U.S.C.  1292. Subsection (e) says that the Supreme Court has power to prescribe rules that provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for in section 1292. The amendment of Rule 5 was prompted by the possibility of new rules authorizing additional interlocutory appeals. Rather than add a separate rule governing each such appeal, the Committee believes it is preferable to amend Rule 5 so that is will govern all such appeals. In addition the Federal Courts Improvement Act of 1996, Pub. L. 104317 This new Rule 5 is intended to govern all discretionary appeals from district-court orders, judgments, or decrees. At this time that includes interlocutory appeals under 28 U.S.C.  1292(b), (c)(1), and (d)(1) & (2). If additional interlocutory appeals are authorized under  1292(e), the new Rule is intended to govern them if the appeals are discretionary. Subdivision (a). Section 1292(b), (c), and (d) provide that the petition must be filed within 10 days after entry of the order containing the statement prescribed in the statute. Existing Rule 5(a) provides that if a district court amends an order to contain the prescribed statement, the petition must be filed within 10 days after entry of the amended order. The new rule similarly says that if a party cannot petition without the district courts permission or statement that necessary circumstances are present, the district court may amend its order to include such a statement and the time to petition runs from the entry of the amended order. The provision that the Rule 4(a) time for filing a notice of appeal should apply if the statute or rule is silent about the filing time was drawn from existing Rule 5.1. Subdivision (b). In paragraph (b)(2) a uniform time7 daysis established for filing an answer in opposition or cross-petition. Seven days is the time for responding under existing Rule 5 and is an appropriate length of time when dealing with an interlocutory appeal. Although existing Rule 5.1 provides 14 days for responding, the Committee does not believe that the longer response time is necessary. Subdivision (c). Subdivision (d). Committee Notes on Rules2002 Amendment Subdivision (c). Rule 5(c) has been further amended to limit the length of papers filed under Rule 5. Changes Made After Publication and Comments. Committee Notes on Rules2009 Amendment Subdivision (b)(2). Subdivision (d)(1). Committee Notes on Rules2016 Amendment The page limits previously employed in Rules 5, 21, 27, 35, and 40 have been largely overtaken by changes in technology. For papers produced using a computer, those page limits are now replaced by word limits. The word limits were derived from the current page limits using the assumption that one page is equivalent to 260 words. Papers produced using a computer must include the certificate of compliance required by Rule 32(g); Form 6 in the Appendix of Forms suffices to meet that requirement. Page limits are retained for papers prepared without the aid of a computer (i.e., handwritten or typewritten papers). For both the word limit and the page limit, the calculation excludes the accompanying documents required by Rule 5(b)(1)(E) and any items listed in Rule 32(f). Committee Notes on Rules2019 Amendment Subdivision (a)(1) is amended to delete the reference to proof of service to reflect amendments to Rule 25(d) that eliminate the requirement of a proof of service when service is completed using a courts electronic filing system. [Rule 5.1. Appeal by Leave under 28 U.S.C.  636(c)(5)] (Abrogated Apr. 24, 1998 Dec. 1, 1998  Committee Notes on Rules1998 Amendment The Federal Courts Improvement Act of 1996, Pub. L. No. 104317, abolished appeals by permission under 28 U.S.C.  636(c)(5), making Rule 5.1 obsolete. Rule 5.1 is, therefore, abrogated. Rule 6. Appeal in a Bankruptcy Case (a) Appeal From a Judgment, Order, or Decree of a District Court Exercising Original Jurisdiction in a Bankruptcy Case. An appeal to a court of appeals from a final judgment, order, or decree of a district court exercising jurisdiction under 28 U.S.C.  1334 is taken as any other civil appeal under these rules. (b) Appeal From a Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a Bankruptcy Case. (1)  Applicability of Other Rules. (A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(c), 1320, 2223, and 24(b) do not apply; (B) the reference in Rule 3(c) to Forms 1A and 1B in the Appendix of Forms must be read as a reference to Form 5; (C) when the appeal is from a bankruptcy appellate panel, district court, as used inany applicable rule, means appellate panel; and (D) in Rule 12.1, district court includes a bankruptcy court or bankruptcy appellate panel. (2)  Additional Rules. (A)  Motion for Rehearing. (i) If a timely motion for rehearing under Bankruptcy Rule 8022 is filed, the time to appeal for all parties runs from the entry of the order disposing of the motion. A notice of appeal filed after the district court or bankruptcy appellate panel announces or enters a judgment, order, or decreebut before disposition of the motion for rehearingbecomes effective when the order disposing of the motion for rehearing is entered. (ii) If a party intends to challenge the order disposing of the motionor the alteration or amendment of a judgment, order, or decree upon the motionthen the party, in compliance with Rules 3(c) and 6(b)(1)(B), must file a notice of appeal or amended notice of appeal. The notice or amended notice must be filed within the time prescribed by Rule 4excluding Rules 4(a)(4) and 4(b)measured from the entry of the order disposing of the motion. (iii) No additional fee is required to file an amended notice. (B)  The Record on Appeal. (i) Within 14 days after filing the notice of appeal, the appellant must file with the clerk possessing the record assembled in accordance with Bankruptcy Rule 8009and serve on the appelleea statement of the issues to be presented on appeal and a designation of the record to be certified and made available to the circuit clerk. (ii) An appellee who believes that other parts of the record are necessary must, within 14 days after being served with the appellants designation, file with the clerk and serve on the appellant a designation of additional parts to be included. (iii) The record on appeal consists of:  the redesignated record as provided above;  the proceedings in the district court or bankruptcy appellate panel; and  a certified copy of the docket entries prepared by the clerk under Rule 3(d). (C)  Making the Record Available. (i) When the record is complete, the district clerk or bankruptcy-appellate-panel clerk must number the documents constituting the record and promptly make it available to the circuit clerk. If the clerk makes the record available in paper form, the clerk will not send documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals, unless directed to do so by a party or the circuit clerk. If unusually bulky or heavy exhibits are to be made available in paper form, a party must arrange with the clerks in advance for their transportation and receipt. (ii) All parties must do whatever else is necessary to enable the clerk to assemble the record and make it available. When the record is made available in paper form, the court of appeals may provide by rule or order that a certified copy of the docket entries be made available in place of the redesignated record. But any party may request at any time during the pendency of the appeal that the redesignated record be made available. (D)  Filing the Record. (c)  Direct Review by Permission Under (1)  Applicability of Other Rules. (A) Rules 34, 5(a)(3), 6(a), 6(b), 8(a), 8(c), 912, 1320, 2223, and 24(b) do not apply; (B) as used in any applicable rule, district court or district clerk includesto the extent appropriatea bankruptcy court or bankruptcy appellate panel or its clerk; and (C) the reference to Rules 11 and 12(c) in Rule 5(d)(3) must be read as a reference to Rules 6(c)(2)(B) and (C). (2)  Additional Rules. (A)  The Record on Appeal. (B)  Making the Record Available. (C)  Stays Pending Appeal. (D)  Duties of the Circuit Clerk. (E)  Filing a Representation Statement. (As amended Apr. 30, 1979 Aug. 1, 1979 Apr. 25, 1989 Dec. 1, 1989 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 24, 1998 Dec. 1, 1998 Mar. 26, 2009 Dec. 1, 2009 Apr. 25, 2014 Dec. 1, 2014 Apr. 14, 2021 Dec. 1, 2021  Notes of Advisory Committee on Rules1967 This rule is substantially a restatement of present procedure. See D.C. Cir. Rule 34; 6th Cir. Rule 11; 7th Cir. Rule 10(d); 10th Cir. Rule 13. Present circuit rules commonly provide that the petition for allowance of an appeal shall be filed within the time allowed by Section 25 of the Bankruptcy Act for taking appeals of right. For the reasons explained in the Note accompanying Rule 4, that rule makes the time for appeal in bankruptcy cases the same as that which obtains in other civil cases and thus supersedes Section 25. Thus the present rule simply continues the former practice of making the time for filing the petition in appeals by allowance the same as that provided for filing the notice of appeal in appeals of right. Notes of Advisory Committee on Rules1979 Amendment The proposed amendment adapts to the practice in appeals by allowance in bankruptcy proceedings the provisions of proposed Rule 3(e) above, requiring payment of all fees in the district court at the time of the filing of the notice of appeal. See Note to Rule 3(e), supra. Notes of Advisory Committee on Rules1989 Amendment A new Rule 6 is proposed. The Bankruptcy Reform Act of 1978, Pub. L. No. 95598, 92 Stat. 2549 Northern Pipeline Construction Co. v. Marathon Pipe Line Co 98 Stat. 333 Subdivision (a) see Subdivision (b) Subdivision (b)(1) Subdivision (b)(2) Notes of Advisory Committee on Rules1993 Amendment Note to Subparagraph (b)(2)(i). The amendment accompanies concurrent changes to Rule 4(a)(4). Although Rule 6 never included language such as that being changed in Rule 4(a)(4), language that made a notice of appeal void if it was filed before, or during the pendency of, certain posttrial motions, courts have found that a notice of appeal is premature if it is filed before the court disposes of a motion for rehearing. See, e.g., In re X-Cel, Inc In re Shah Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Subdivision (b). Committee Notes on Rules2009 Amendment Subdivision (b)(2)(B). Committee Notes on Rules2014 Amendment Subdivision (b)(1). Subdivision (b)(2). Subdivision (b)(2)(A)(ii) is amended to address problems that stemmed from the adoptionduring the 1998 restyling projectof language referring to challenges to an altered or amended judgment, order, or decree. Current Rule 6(b)(2)(A)(ii) states that [a] party intending to challenge an altered or amended judgment, order, or decree must file a notice of appeal or amended notice of appeal . ... Before the 1998 restyling, the comparable subdivision of Rule 6 instead read [a] party intending to challenge an alteration or amendment of the judgment, order, or decree shall file an amended notice of appeal . ... The 1998 restyling made a similar change in Rule 4(a)(4). One court has explained that the 1998 amendment introduced ambiguity into that Rule: The new formulation could be read to expand the obligation to file an amended notice to circumstances where the ruling on the post-trial motion alters the prior judgment in an insignificant manner or in a manner favorable to the appellant, even though the appeal is not directed against the alteration of the judgment. Sorensen v. City of New York Sorensen Sorensen Subdivision (b)(2)(B)(i) is amended to refer to Rule 8009 (in accordance with the renumbering of Part VIII of the Bankruptcy Rules). Due to the shift to electronic filing, in some appeals the record will no longer be transmitted in paper form. Subdivisions (b)(2)(B)(i), (b)(2)(C), and (b)(2)(D) are amended to reflect the fact that the record sometimes will be made available electronically. Subdivision (b)(2)(D) sets the duties of the circuit clerk when the record has been made available. Because the record may be made available in electronic form, subdivision (b)(2)(D) does not direct the clerk to file the record. Rather, it directs the clerk to note on the docket the date when the record was made available and to notify the parties of that date, which shall serve as the date of filing the record for purposes of provisions in these Rules that calculate time from that filing date. Subdivision (c). Subdivision (c)(1). Subdivision (c)(2). Subdivision (c)(2)(D), like subdivision (b)(2)(D), directs the clerk to note on the docket the date when the record was made available and to notify the parties of that date, which shall serve as the date of filing the record for purposes of provisions in these Rules that calculate time from that filing date. Subdivision (c)(2)(E) is modeled on Rule 12(b), with appropriate adjustments. Changes Made After Publication and Comment. Committee Notes on Rules2021 Amendment The amendment replaces Form 1 with Forms 1A and 1B to conform to the amendment to Rule 3(c).  References in Text The Bankruptcy Rules, referred to in subd. (b)(2)(A)(i), (B)(i), (c)(2)(A)(C), are set out in the Appendix to Title 11, Bankruptcy. Rule 7. Bond for Costs on Appeal in a Civil Case  In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a surety on a bond given under this rule. (As amended Apr. 30, 1979 Aug. 1, 1979 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 This rule is derived from FRCP 73(c) without change in substance. Notes of Advisory Committee on Rules1979 Amendment The amendment would eliminate the provision of the present rule that requires the appellant to file a $250 bond for costs on appeal at the time of filing his notice of appeal. The $250 provision was carried forward in the F.R.App.P. from former Rule 73(c) of the F.R.Civ.P., and the $250 figure has remained unchanged since the adoption of that rule in 1937. Today it bears no relationship to actual costs. The amended rule would leave the question of the need for a bond for costs and its amount in the discretion of the court. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 8. Stay or Injunction Pending Appeal (a) Motion for Stay. (1)  Initial Motion in the District Court. (A) a stay of the judgment or order of a district court pending appeal; (B) approval of a bond or other security provided to obtain a stay of judgment; or (C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending. (2)  Motion in the Court of Appeals; Conditions on Relief. (A) The motion must: (i) show that moving first in the district court would be impracticable; or (ii) state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action. (B) The motion must also include: (i) the reasons for granting the relief requested and the facts relied on; (ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and (iii) relevant parts of the record. (C) The moving party must give reasonable notice of the motion to all parties. (D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge. (E) The court may condition relief on a partys filing a bond or other security in the district court. (b) Proceeding Against a Security Provider. If a party gives security with one or more security providers, each provider submits to the jurisdiction of the district court and irrevocably appoints the district clerk as its agent on whom any papers affecting its liability on the security may be served. On motion, a security providers liability may be enforced in the district court without the necessity of an independent action. The motion and any notice that the district court prescribes may be served on the district clerk, who must promptly send a copy to each security provider whose address is known. (c) Stay in a Criminal Case. Rule 38 of the Federal Rules of Criminal Procedure governs a stay in a criminal case. (As amended Mar. 10, 1986 July 1, 1986 Apr. 27, 1995 Dec. 1, 1995 Apr. 24, 1998 Dec. 1, 1998 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1967 Subdivision (a) Eastern Greyhound Lines v. Fusco United States v. Lynd Public Utilities Commission of Dist. of Col. v. Capital Transit Co In re McKenzie Scripps-Howard Radio v. F.C.C In re McKenzie, supra. Alexander v. United States Cumberland Tel. & Tel. Co. v. Louisiana Public Service Commission United States v. El-O-Pathic Pharmacy United States v. Hansell The statement of the requirement in the proposed rule would work a minor change in present practice. FRCP 73(e) requires that if a bond for costs on appeal or a supersedeas bond is offered after the appeal is docketed, leave to file the bond must be obtained from the court of appeals. There appears to be no reason why matters relating to supersedeas and cost bonds should not be initially presented to the district court whenever they arise prior to the disposition of the appeal. The requirement of FRCP 73(e) appears to be a concession to the view that once an appeal is perfected, the district court loses all power over its judgment. See In re Federal Facilities Trust, Subdivision (b) Notes of Advisory Committee on Rules1986 Amendment The amendments to Rule 8(b) are technical. No substantive change is intended. Notes of Advisory Committee on Rules1995 Amendment Subdivision (c) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2018 Amendment The amendments to subdivisions (a) and (b) conform this rule with the amendment of Federal Rule of Civil Procedure 62. Rule 62 formerly required a party to provide a supersedeas bond to obtain a stay of the judgment and proceedings to enforce the judgment. As amended, Rule 62(b) allows a party to obtain a stay by providing a bond or other security. The word mail is changed to send to avoid restricting the method of serving security providers. Other rules specify the permissible manners of service.  References in Text The Federal Rules of Criminal Procedure, referred to in subd. (c), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. Rule 9. Release in a Criminal Case (a) Release Before Judgment of Conviction. (1) The district court must state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case. A party appealing from the order must file with the court of appeals a copy of the district courts order and the courts statement of reasons as soon as practicable after filing the notice of appeal. An appellant who questions the factual basis for the district courts order must file a transcript of the release proceedings or an explanation of why a transcript was not obtained. (2) After reasonable notice to the appellee, the court of appeals must promptly determine the appeal on the basis of the papers, affidavits, and parts of the record that the parties present or the court requires. Unless the court so orders, briefs need not be filed. (3) The court of appeals or one of its judges may order the defendants release pending the disposition of the appeal. (b) Release After Judgment of Conviction. A party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction. Both the order and the review are subject to Rule 9(a). The papers filed by the party seeking review must include a copy of the judgment of conviction. (c) Criteria for Release. The court must make its decision regarding release in accordance with the applicable provisions of 18 U.S.C.  3142, 3143, and 3145(c). (As amended Apr. 24, 1972 Oct. 1, 1972 Pub. L. 98473, title II,  210 Oct. 12, 1984 98 Stat. 1987 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 Subdivision (a) Stack v. Boyle Stack v. Boyle United States v. Foster The purpose of the subdivision is to insure the expeditious determination of appeals respecting release orders, an expedition commanded by 18 U.S.C.  3147 and by the Court in Stack v. Boyle Jones v. United States Rhodes v. United States United States v. Williams Subdivision (b) Notes of Advisory Committee on Rules1972 Amendment Subdivision (c) is intended to bring the rule into conformity with 18 U.S.C.  3148 and to allocate to the defendant the burden of establishing that he will not flee and that he poses no danger to any other person or to the community. The burden is placed upon the defendant in the view that the fact of his conviction justifies retention in custody in situations where doubt exists as to whether he can be safely released pending disposition of his appeal. Release pending appeal may also be denied if it appears that an appeal is frivolous or taken for delay. 18 U.S.C.  3148. The burden of establishing the existence of these criteria remains with the government. Notes of Advisory Committee on Rules1994 Amendment Rule 9 has been entirely rewritten. The basic structure of the rule has been retained. Subdivision (a) governs appeals from bail decisions made before the judgment of conviction is entered at the time of sentencing. Subdivision (b) governs review of bail decisions made after sentencing and pending appeal. Subdivision (a) i.e See The rule requires a party appealing from a district courts decision to supply the court of appeals with a copy of the district courts order and its statement of reasons. In addition, an appellant who questions the factual basis for the district courts decision must file a transcript of the release proceedings, if possible. The rule also permits a court to require additional papers. A court must act promptly to decide these appeals; lack of pertinent information can cause delays. The old rule left the determination of what should be filed entirely within the partys discretion; it stated that the court of appeals would hear the appeal upon such papers, affidavits, and portions of the record as the parties shall present. Subdivision (b) The word review is used in this subdivision, rather than appeal because review may be obtained, in some instances, upon motion. Review may be obtained by motion if the party has already filed a notice of appeal from the judgment of conviction. If the party desiring review of the release decision has not filed such a notice of appeal, review may be obtained only by filing a notice of appeal from the order regarding release. The requirements of subdivision (a) apply to both the order and the review. That is, the district court must state its reasons for the order. The party seeking review must supply the court of appeals with the same information required by subdivision (a). In addition, the party seeking review must also supply the court with information about the conviction and the sentence. Subdivision (c) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Amendment by Public Law 1984Subd. (c). Pub. L. 98473 Rule 10. The Record on Appeal (a) Composition of the Record on Appeal. The following items constitute the record on appeal: (1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk. (b) The Transcript of Proceedings. (1)  Appellants Duty to Order. (A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, subject to a local rule of the court of appeals and with the following qualifications: (i) the order must be in writing; (ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and (iii) the appellant must, within the same period, file a copy of the order with the district clerk; or (B) file a certificate stating that no transcript will be ordered. (2)  Unsupported Finding or Conclusion. (3)  Partial Transcript. (A) the appellant mustwithin the 14 days provided in Rule 10(b)(1)file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement; (B) if the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must, within 14 days after the service of the order or certificate and the statement of the issues, file and serve on the appellant a designation of additional parts to be ordered; and (C) unless within 14 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the following 14 days either order the parts or move in the district court for an order requiring the appellant to do so. (4)  Payment. (c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellants recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal. (d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the courts resolution of the issues. If the statement is truthful, ittogether with any additions that the district court may consider necessary to a full presentation of the issues on appealmust be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30. (e) Correction or Modification of the Record. (1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly. (2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded: (A) on stipulation of the parties; (B) by the district court before or after the record has been forwarded; or (C) by the court of appeals. (3) All other questions as to the form and content of the record must be presented to the court of appeals. (As amended Apr. 30, 1979 Aug. 1, 1979 Mar. 10, 1986 July 1, 1986 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 27, 1995 Dec. 1, 1995 Apr. 24, 1998 Dec. 1, 1998 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1967 This rule is derived from FRCP 75(a), (b), (c) and (d) and FRCP 76, without change in substance. Notes of Advisory Committee on Rules1979 Amendment The proposed amendments to Rule 10(b) would require the appellant to place with the reporter a written order for the transcript of proceedings and file a copy with the clerk, and to indicate on the order if the transcript is to be provided under the Criminal Justice Act. If the appellant does not plan to order a transcript of any of the proceedings, he must file a certificate to that effect. These requirements make the appellants steps in readying the appeal a matter of record and give the district court notice of requests for transcripts at the expense of the United States under the Criminal Justice Act. They are also the third step in giving the court of appeals some control over the production and transmission of the record. See Note to Rules 3(d)(e) above and Rule 11 below. In the event the appellant orders no transcript, or orders a transcript of less than all the proceedings, the procedure under the proposed amended rule remains substantially as before. The appellant must serve on the appellee a copy of his order or in the event no order is placed, of the certificate to that effect, and a statement of the issues he intends to present on appeal, and the appellee may thereupon designate additional parts of the transcript to be included, and upon appellants refusal to order the additional parts, may either order them himself or seek an order requiring the appellant to order them. The only change proposed in this procedure is to place a 10 day time limit on motions to require the appellant to order the additional portions. Rule 10(b) is made subject to local rules of the courts of appeals in recognition of the practice in some circuits in some classes of cases, e. g., appeals by indigents in criminal cases after a short trial, of ordering immediate preparation of a complete transcript, thus making compliance with the rule unnecessary. Notes of Advisory Committee on Rules1986 Amendment The amendments to Rules 10(b) and (c) are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The amendment is technical and no substantive change is intended. Notes of Advisory Committee on Rules1995 Amendment Subdivision (b)(1) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Subdivisions (b)(1), (b)(3), and (c).  References in Text The Criminal Justice Act, referred to in subd. (b)(1)(A)(ii), probably means the Criminal Justice Act of 1964, Pub. L. 88455 Aug. 20, 1964 78 Stat. 552 section 3006A of Title 18 section 3006A of Title 18 section 3006A of Title 18 Rule 11. Forwarding the Record (a) Appellants Duty. An appellant filing a notice of appeal must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record. If there are multiple appeals from a judgment or order, the clerk must forward a single record. (b) Duties of Reporter and District Clerk. (1)  Reporters Duty to Prepare and File a Transcript. (A) Upon receiving an order for a transcript, the reporter must enter at the foot of the order the date of its receipt and the expected completion date and send a copy, so endorsed, to the circuit clerk. (B) If the transcript cannot be completed within 30 days of the reporters receipt of the order, the reporter may request the circuit clerk to grant additional time to complete it. The clerk must note on the docket the action taken and notify the parties. (C) When a transcript is complete, the reporter must file it with the district clerk and notify the circuit clerk of the filing. (D) If the reporter fails to file the transcript on time, the circuit clerk must notify the district judge and do whatever else the court of appeals directs. (2)  District Clerks Duty to Forward. (c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal. The parties may stipulate, or the district court on motion may order, that the district clerk retain the record temporarily for the parties to use in preparing the papers on appeal. In that event the district clerk must certify to the circuit clerk that the record on appeal is complete. Upon receipt of the appellees brief, or earlier if the court orders or the parties agree, the appellant must request the district clerk to forward the record. (d)  [Abrogated.] (e) Retaining the Record by Court Order. (1) The court of appeals may, by order or local rule, provide that a certified copy of the docket entries be forwarded instead of the entire record. But a party may at any time during the appeal request that designated parts of the record be forwarded. (2) The district court may order the record or some part of it retained if the court needs it while the appeal is pending, subject, however, to call by the court of appeals. (3) If part or all of the record is ordered retained, the district clerk must send to the court of appeals a copy of the order and the docket entries together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties. (f) Retaining Parts of the Record in the District Court by Stipulation of the Parties. The parties may agree by written stipulation filed in the district court that designated parts of the record be retained in the district court subject to call by the court of appeals or request by a party. The parts of the record so designated remain a part of the record on appeal. (g) Record for a Preliminary Motion in the Court of Appeals. If, before the record is forwarded, a party makes any of the following motions in the court of appeals:  for dismissal;  for release;  for a stay pending appeal;  for additional security on the bond on appeal or on a bond or other security provided to obtain a stay of judgment; or  for any other intermediate order the district clerk must send the court of appeals any parts of the record designated by any party. (As amended Apr. 30, 1979 Aug. 1, 1979 Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1967 Subdivisions (a) and (b) Subdivision (c) Subdivision (d) Pyramid Motor Freight Corporation v. Ispass Subdivisions (e), (f) and (g) Notes of Advisory Committee on Rules1979 Amendment Under present Rule 11(a) it is provided that the record shall be transmitted to the court of appeals within 40 days after the filing of the notice of appeal. Under present Rule 11(d) the district court, on request made during the initial time or any extension thereof, and cause shown, may extend the time for the transmission of the record to a point not more than 90 days after the filing of the first notice of appeal. If the district court is without authority to grant a request to extend the time, or denies a request for extension, the appellant may make a motion for extension of time in the court of appeals. Thus the duty to see that the record is transmitted is placed on the appellant. Aside from ordering the transcript within the time prescribed the appellant has no control over the time at which the record is transmitted, since all steps beyond this point are in the hands of the reporter and the clerk. The proposed amendments recognize this fact and place the duty directly on the reporter and the clerk. After receiving the written order for the transcript (See Note to Rule 10(b) above), the reporter must acknowledge its receipt, indicate when he expects to have it completed, and mail the order so endorsed to the clerk of the court of appeals. Requests for extensions of time must be made by the reporter to the clerk of the court of appeals and action on such requests is entered on the docket. Thus from the point at which the transcript is ordered the clerk of the court of appeals is made aware of any delays. If the transcript is not filed on time, the clerk of the court of appeals will notify the district judge. Present Rule 11(b) provides that the record shall be transmitted when it is complete for the purposes of the appeal. The proposed amended rule continues this requirement. The record is complete for the purposes of the appeal when it contains the original papers on file in the clerks office, all necessary exhibits, and the transcript, if one is to be included. Cf. present Rule 11(c). The original papers will be in the custody of the clerk of the district court at the time the notice of appeal is filed. See Rule 5(e) of the F.R.C.P. The custody of exhibits is often the subject of local rules. Some of them require that documentary exhibits must be deposited with the clerk. See Local Rule 13 of the Eastern District of Virginia. Others leave exhibits with counsel, subject to order of the court. See Local Rule 33 of the Northern District of Illinois. If under local rules the custody of exhibits is left with counsel, the district court should make adequate provision for their preservation during the time during which an appeal may be taken, the prompt deposit with the clerk of such as under Rule 11(b) are to be transmitted to the court of appeals, and the availability of others in the event that the court of appeals should require their transmission. Cf. Local Rule 11 of the Second Circuit. Usually the record will be complete with the filing of the transcript. While the proposed amendment requires transmission forthwith when the record is complete, it was not designed to preclude a local requirement by the court of appeals that the original papers and exhibits be transmitted when complete without awaiting the filing of the transcript. The proposed amendments continue the provision in the present rule that documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted without direction by the parties or by the court of appeals, and the requirement that the parties make special arrangements for transmission and receipt of exhibits of unusual bulk or weight. In addition, they give recognition to local rules that make transmission of other record items subject to order of the court of appeals. See Local Rule 4 of the Seventh Circuit. Notes of Advisory Committee on Rules1986 Amendment The amendments to Rule 11(b) are technical. No substantive change is intended. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2018 Amendment The amendment of subdivision (g) conforms this rule with the amendment of Federal Rule of Civil Procedure 62. Rule 62 formerly required a party to provide a supersedeas bond to obtain a stay of the judgment and proceedings to enforce the judgment. As amended, Rule 62(b) allows a party to obtain a stay by providing a bond or other security. Rule 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record (a) Docketing the Appeal. Upon receiving the copy of the notice of appeal and the docket entries from the district clerk under Rule 3(d), the circuit clerk must docket the appeal under the title of the district-court action and must identify the appellant, adding the appellants name if necessary. (b) Filing a Representation Statement. Unless the court of appeals designates another time, the attorney who filed the notice of appeal must, within 14 days after filing the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal. (c) Filing the Record, Partial Record, or Certificate. Upon receiving the record, partial record, or district clerks certificate as provided in Rule 11, the circuit clerk must file it and immediately notify all parties of the filing date. (As amended Apr. 1, 1979 Aug. 1, 1979 Mar. 10, 1986 July 1, 1986 Apr. 22, 1993 Dec. 1, 1993 Apr. 24, 1998 Dec. 1, 1998 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1967 Subdivision (a) Subdivision (c) Notes of Advisory Committee on Rules1979 Amendment Subdivision (a) Subdivision (b) Notes of Advisory Committee on Rules1986 Amendment The amendment to Rule 12(a) is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Note to new subdivision (b). This amendment is a companion to the amendment of Rule 3(c). The Rule 3(c) amendment allows an attorney who represents more than one party on appeal to specify the appellants by general description rather than by naming them individually. The requirement added here is that whenever an attorney files a notice of appeal, the attorney must soon thereafter file a statement indicating all parties represented on the appeal by that attorney. Although the notice of appeal is the jurisdictional document and it must clearly indicate who is bringing the appeal, the representation statement will be helpful especially to the court of appeals in identifying the individual appellants. The rule allows a court of appeals to require the filing of the representation statement at some time other than specified in the rule so that if a court of appeals requires a docketing statement or appearance form the representation statement may be combined with it. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Subdivision (b). Rule 12.1. Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal (a) Notice to the Court of Appeals. If a timely motion is made in the district court for relief that it lacks authority to grant because of an appeal that has been docketed and is pending, the movant must promptly notify the circuit clerk if the district court states either that it would grant the motion or that the motion raises a substantial issue. (b) Remand After an Indicative Ruling. If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the court of appeals remands but retains jurisdiction, the parties must promptly notify the circuit clerk when the district court has decided the motion on remand. (As added Mar. 26, 2009 Dec. 1, 2009  Committee Notes on Rules2009 This new rule corresponds to Federal Rule of Civil Procedure 62.1, which adopts for any motion that the district court cannot grant because of a pending appeal the practice that most courts follow when a party moves under Civil Rule 60(b) to vacate a judgment that is pending on appeal. After an appeal has been docketed and while it remains pending, the district court cannot grant relief under a rule such as Civil Rule 60(b) without a remand. But it can entertain the motion and deny it, defer consideration, state that it would grant the motion if the court of appeals remands for that purpose, or state that the motion raises a substantial issue. Experienced lawyers often refer to the suggestion for remand as an indicative ruling. (Appellate Rule 4(a)(4) lists six motions that, if filed within the relevant time limit, suspend the effect of a notice of appeal filed before or after the motion is filed until the last such motion is disposed of. The district court has authority to grant the motion without resorting to the indicative ruling procedure.) The procedure formalized by Rule 12.1 is helpful when relief is sought from an order that the court cannot reconsider because the order is the subject of a pending appeal. In the criminal context, the Committee anticipates that Rule 12.1 will be used primarily if not exclusively for newly discovered evidence motions under Criminal Rule 33(b)(1) ( see United States v. Cronic Rule 12.1 does not attempt to define the circumstances in which an appeal limits or defeats the district courts authority to act in the face of a pending appeal. The rules that govern the relationship between trial courts and appellate courts may be complex, depending in part on the nature of the order and the source of appeal jurisdiction. Appellate Rule 12.1 applies only when those rules deprive the district court of authority to grant relief without appellate permission. To ensure proper coordination of proceedings in the district court and in the court of appeals, the movant must notify the circuit clerk if the district court states that it would grant the motion or that the motion raises a substantial issue. The substantial issue standard may be illustrated by the following hypothetical: The district court grants summary judgment dismissing a case. While the plaintiffs appeal is pending, the plaintiff moves for relief from the judgment, claiming newly discovered evidence and also possible fraud by the defendant during the discovery process. If the district court reviews the motion and indicates that the motion raises a substantial issue, the court of appeals may well wish to remand rather than proceed to determine the appeal. If the district court states that it would grant the motion or that the motion raises a substantial issue, the movant may ask the court of appeals to remand so that the district court can make its final ruling on the motion. In accordance with Rule 47(a)(1), a local rule may prescribe the format for the litigants notifications and the district courts statement. Remand is in the court of appeals discretion. The court of appeals may remand all proceedings, terminating the initial appeal. In the context of postjudgment motions, however, that procedure should be followed only when the appellant has stated clearly its intention to abandon the appeal. The danger is that if the initial appeal is terminated and the district court then denies the requested relief, the time for appealing the initial judgment will have run out and a court might rule that the appellant is limited to appealing the denial of the postjudgment motion. The latter appeal may well not provide the appellant with the opportunity to raise all the challenges that could have been raised on appeal from the underlying judgment. See, e.g., Browder v. Dir., Dept of Corrections of Ill. The court of appeals may instead choose to remand for the sole purpose of ruling on the motion while retaining jurisdiction to proceed with the appeal after the district court rules on the motion (if the appeal is not moot at that point and if any party wishes to proceed). This will often be the preferred course in the light of the concerns expressed above. It is also possible that the court of appeals may wish to proceed to hear the appeal even after the district court has granted relief on remand; thus, even when the district court indicates that it would grant relief, the court of appeals may in appropriate circumstances choose a limited rather than unlimited remand. If the court of appeals remands but retains jurisdiction, subdivision (b) requires the parties to notify the circuit clerk when the district court has decided the motion on remand. This is a joint obligation that is discharged when the required notice is given by any litigant involved in the motion in the district court. When relief is sought in the district court during the pendency of an appeal, litigants should bear in mind the likelihood that a new or amended notice of appeal will be necessary in order to challenge the district courts disposition of the motion. See, e.g., Jordan v. Bowen TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc. Changes Made After Publication and Comment. As published for comment, the second paragraph of the Note read: [Appellate Rule 12.1 is not limited to the Civil Rule 62.1 context; Rule 12.1 may also be used, for example, in connection with motions under Criminal Rule 33. See United States v. Cronic see United States v. Cronic see United States v. Cronic As published for comment, the first sentence of the Notes last paragraph read: When relief is sought in the district court during the pendency of an appeal, litigants should bear in mind the likelihood that a separate notice of appeal will be necessary in order to challenge the district courts disposition of the motion. In response to a suggestion by Public Citizen, the Appellate Rules Committee revised this sentence to refer to a new or amended notice of appeal rather than a separate notice of appeal. The Appellate Rules Committee, in consultation with the Civil Rules Committee, added the following parenthetical at the end of the Notes first paragraph: (The effect of a notice of appeal on district-court authority is addressed by Appellate Rule 4(a)(4), which lists six motions that, if filed within the relevant time limit, suspend the effect of a notice of appeal filed before or after the motion is filed until the last such motion is disposed of. The district court has authority to grant the motion without resorting to the indicative ruling procedure.) This parenthetical is designed to forestall confusion concerning the effect of tolling motions on a district courts power to act. The Standing Committee approved a change to the first sentence of the parenthetical; it now reads: Appellate Rule 4(a)(4) lists six motions that, if filed within the relevant time limit, suspend the effect of a notice of appeal filed before or after the motion is filed until the last such motion is disposed of. The Appellate Rules Committee, acting at the suggestion of the Civil Rules Committee, altered the wording of one sentence in the first paragraph and one sentence in the fifth paragraph of the Note. The changes are designed to remove references to remands of the action, since those references would be in tension with the Notes advice concerning the advisability of limited remands. Thus, in the Notes first paragraph if the action is remanded became if the court of appeals remands for that purpose, and in the Notes fifth paragraph may ask the court of appeals to remand the action became may ask the court of appeals to remand. The Appellate Rules Committee also made stylistic changes to the Notes first and third paragraphs. Experienced appeal lawyers became Experienced lawyers, and act in face of a pending appeal became act in the face of a pending appeal. TITLE III. APPEALS FROM THE UNITED STATES TAX COURT Rule 13. Appeals from the Tax Court (a)  Appeal as of Right. (1)  How Obtained; Time for Filing a Notice of Appeal. (A) An appeal as of right from the United States Tax Court is commenced by filing a notice of appeal with the Tax Court clerk within 90 days after the entry of the Tax Courts decision. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d). If one party files a timely notice of appeal, any other party may file a notice of appeal within 120 days after the Tax Courts decision is entered. (B) If, under Tax Court rules, a party makes a timely motion to vacate or revise the Tax Courts decision, the time to file a notice of appeal runs from the entry of the order disposing of the motion or from the entry of a new decision, whichever is later. (2)  Notice of Appeal; How Filed. (3)  Contents of the Notice of Appeal; Service; Effect of Filing and Service. (4)  The Record on Appeal; Forwarding; Filing. (A) Except as otherwise provided under Tax Court rules for the transcript of proceedings, the appeal is governed by the parts of Rules 10, 11, and 12 regarding the record on appeal from a district court, the time and manner of forwarding and filing, and the docketing in the court of appeals. (B) If an appeal is taken to more than one court of appeals, the original record must be sent to the court named in the first notice of appeal filed. In an appeal to any other court of appeals, the appellant must apply to that other court to make provision for the record. (b)  Appeal by Permission. (As amended Apr. 1, 1979 Aug. 1, 1979 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 16, 2013 Dec. 1, 2013 Apr. 25, 2019 Dec. 1, 2019  Notes of Advisory Committee on Rules1967 Subdivision (a) 68A Stat. 891 supra November 6, 1966 80 Stat. 1323 The second paragraph states the settled teaching of the case law. See Robert Louis Stevenson Apartments, Inc. v. C.I.R Denholm & McKay Co. v. C.I.R Helvering v. Continental Oil Co Burnet v. Lexington Ice & Coal Co Griffiths v. C.I.R Subdivision (b) Notes of Advisory Committee on Rules1979 Amendment The proposed amendment reflects the change in the title of the Tax Court to United States Tax Court. See 26 U.S.C.  7441. Notes of Advisory Committee on Rules1994 Amendment Subdivision (a) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2013 Amendment Rules 13 and 14 are amended to address the treatment of permissive interlocutory appeals from the Tax Court under 26 U.S.C.  7482(a)(2). Rules 13 and 14 do not currently address such appeals; instead, those Rules address only appeals as of right from the Tax Court. The existing Rule 13governing appeals as of rightis revised and becomes Rule 13(a). New subdivision (b) provides that Rule 5 governs appeals by permission. The definition of district court and district clerk in current subdivision (d)(1) is deleted; definitions are now addressed in Rule 14. The caption of Title III is amended to reflect the broadened application of this Title. Changes Made After Publication and Comment. Committee Notes on Rules2019 Amendment The amendment to subdivision (a)(2) will allow an appellant to send a notice of appeal to the Tax Court clerk by means other than mail. Other rules determine when a party must send a notice electronically or non-electronically.  References in Text The Internal Revenue Code, referred to in subd. (a)(2), is classified to Title 26, Internal Revenue Code. Rule 14. Applicability of Other Rules to Appeals from the Tax Court  All provisions of these rules, except Rules 4, 69, 1520, and 2223, apply to appeals from the Tax Court. References in any applicable rule (other than Rule 24(a)) to the district court and district clerk are to be read as referring to the Tax Court and its clerk. (As amended Apr. 24, 1998 Dec. 1, 1998 Apr. 16, 2013 Dec. 1, 2013  Notes of Advisory Committee on Rules1967 The proposed rule continues the present uniform practice of the circuits of regulating review of decisions of the Tax Court by the general rules applicable to appeals from judgments of the district courts. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2013 Amendment Rule 13 currently addresses appeals as of right from the Tax Court, and Rule 14 currently addresses the applicability of the Appellate Rules to such appeals. Rule 13 is amended to add a new subdivision (b) treating permissive interlocutory appeals from the Tax Court under 26 U.S.C.  7482(a)(2). Rule 14 is amended to address the applicability of the Appellate Rules to both appeals as of right and appeals by permission. Because the latter are governed by Rule 5, that rule is deleted from Rule 14s list of inapplicable provisions. Rule 14 is amended to define the terms district court and district clerk in applicable rules (excluding Rule 24(a)) to include the Tax Court and its clerk. Rule 24(a) is excluded from this definition because motions to appeal from the Tax Court in forma pauperis are governed by Rule 24(b), not Rule 24(a). Changes Made After Publication and Comment. TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER Rule 15. Review or Enforcement of an Agency OrderHow Obtained; Intervention (a) Petition for Review; Joint Petition. (1) Review of an agency order is commenced by filing, within the time prescribed by law, a petition for review with the clerk of a court of appeals authorized to review the agency order. If their interests make joinder practicable, two or more persons may join in a petition to the same court to review the same order. (2) The petition must: (A) name each party seeking review either in the caption or the body of the petitionusing such terms as et al., petitioners, or respondents does not effectively name the parties; (B) name the agency as a respondent (even though not named in the petition, the United States is a respondent if required by statute); and (C) specify the order or part thereof to be reviewed. (3) Form 3 in the Appendix of Forms is a suggested form of a petition for review. (4) In this rule agency includes an agency, board, commission, or officer; petition for review includes a petition to enjoin, suspend, modify, or otherwise review, or a notice of appeal, whichever form is indicated by the applicable statute. (b) Application or Cross-Application to Enforce an Order; Answer; Default. (1) An application to enforce an agency order must be filed with the clerk of a court of appeals authorized to enforce the order. If a petition is filed to review an agency order that the court may enforce, a party opposing the petition may file a cross-application for enforcement. (2) Within 21 days after the application for enforcement is filed, the respondent must serve on the applicant an answer to the application and file it with the clerk. If the respondent fails to answer in time, the court will enter judgment for the relief requested. (3) The application must contain a concise statement of the proceedings in which the order was entered, the facts upon which venue is based, and the relief requested. (c) Service of the Petition or Application. The circuit clerk must serve a copy of the petition for review, or an application or cross-application to enforce an agency order, on each respondent as prescribed by Rule 3(d), unless a different manner of service is prescribed by statute. At the time of filing, the petitioner must: (1) serve, or have served, a copy on each party admitted to participate in the agency proceedings, except for the respondents; (2) file with the clerk a list of those so served; and (3) give the clerk enough copies of the petition or application to serve each respondent. (d) Intervention. Unless a statute provides another method, a person who wants to intervene in a proceeding under this rule must file a motion for leave to intervene with the circuit clerk and serve a copy on all parties. The motionor other notice of intervention authorized by statutemust be filed within 30 days after the petition for review is filed and must contain a concise statement of the interest of the moving party and the grounds for intervention. (e) Payment of Fees. When filing any separate or joint petition for review in a court of appeals, the petitioner must pay the circuit clerk all required fees. (As amended Apr. 22, 1993 Dec. 1, 1993 Apr. 24, 1998 Dec. 1, 1998 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1967 General Note November 6, 1966 80 Stat. 1323 64 Stat. 1132 November 6, 1966 supra Subdivision (a) 64 Stat. 1130 Subdivision (b) Subdivision (c) Subdivision (d) 66 Stat. 719 61 Stat. 927 Notes of Advisory Committee on Rules1993 Amendment Subdivision (a) Subdivision (e) see, e.g Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Subdivision (b)(2) Rule 15.1. Briefs and Oral Argument in a National Labor Relations Board Proceeding  In either an enforcement or a review proceeding, a party adverse to the National Labor Relations Board proceeds first on briefing and at oral argument, unless the court orders otherwise. (As added Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1986 This rule simply confirms the existing practice in most circuits. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 16. The Record on Review or Enforcement (a) Composition of the Record. The record on review or enforcement of an agency order consists of: (1) the order involved; (2) any findings or report on which it is based; and (3) the pleadings, evidence, and other parts of the proceedings before the agency. (b) Omissions From or Misstatements in the Record. The parties may at any time, by stipulation, supply any omission from the record or correct a misstatement, or the court may so direct. If necessary, the court may direct that a supplemental record be prepared and filed. (As amended Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 Subdivision (a) is based upon 28 U.S.C.  2112(b). There is no distinction between the record compiled in the agency proceeding and the record on review; they are one and the same. The record in agency cases is thus the same as that in appeals from the district courtthe original papers, transcripts and exhibits in the proceeding below. Subdivision (b) is based upon section 8 of the uniform rule (see General Note following Rule 15). Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 17. Filing the Record (a) Agency to File; Time for Filing; Notice of Filing. The agency must file the record with the circuit clerk within 40 days after being served with a petition for review, unless the statute authorizing review provides otherwise, or within 40 days after it files an application for enforcement unless the respondent fails to answer or the court orders otherwise. The court may shorten or extend the time to file the record. The clerk must notify all parties of the date when the record is filed. (b) FilingWhat Constitutes. (1) The agency must file: (A) the original or a certified copy of the entire record or parts designated by the parties; or (B) a certified list adequately describing all documents, transcripts of testimony, exhibits, and other material constituting the record, or describing those parts designated by the parties. (2) The parties may stipulate in writing that no record or certified list be filed. The date when the stipulation is filed with the circuit clerk is treated as the date when the record is filed. (3) The agency must retain any portion of the record not filed with the clerk. All parts of the record retained by the agency are a part of the record on review for all purposes and, if the court or a party so requests, must be sent to the court regardless of any prior stipulation. (As amended Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 Subdivision (a) Subdivision (b) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only; a substantive change is made, however, in subdivision (b). Subdivision (b). Rule 18. Stay Pending Review (a) Motion for a Stay. (1)  Initial Motion Before the Agency. (2)  Motion in the Court of Appeals. (A) The motion must: (i) show that moving first before the agency would be impracticable; or (ii) state that, a motion having been made, the agency denied the motion or failed to afford the relief requested and state any reasons given by the agency for its action. (B) The motion must also include: (i) the reasons for granting the relief requested and the facts relied on; (ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and (iii) relevant parts of the record. (C) The moving party must give reasonable notice of the motion to all parties. (D) The motion must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge. (b) Bond. The court may condition relief on the filing of a bond or other appropriate security. (As amended Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 While this rule has no counterpart in present rules regulating review of agency proceedings, it merely assimilates the procedure for obtaining stays in agency proceedings with that for obtaining stays in appeals from the district courts. The same considerations which justify the requirement of an initial application to the district court for a stay pending appeal support the requirement of an initial application to the agency pending review. See Note accompanying Rule 8. Title 5, U.S.C.  705 (5 U.S.C.A.  705 (1966 Pamphlet)) confers general authority on both agencies and reviewing courts to stay agency action pending review. Many of the statutes authorizing review of agency action by the courts of appeals deal with the question of stays, and at least one, the Act of June 15, 1936 49 Stat. 1499 Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part  When the court files an opinion directing entry of judgment enforcing the agencys order in part, the agency must within 14 days file with the clerk and serve on each other party a proposed judgment conforming to the opinion. A party who disagrees with the agencys proposed judgment must within 10 days file with the clerk and serve the agency with a proposed judgment that the party believes conforms to the opinion. The court will settle the judgment and direct entry without further hearing or argument. (As amended Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1967 This is section 12 of the uniform rule (see General Note following Rule 15) with changes in phraseology. Notes of Advisory Committee on Rules1986 Amendment The deletion of the words in whole or is designed to eliminate delay in the issuance of a judgment when the court of appeals has either enforced completely the order of an agency or denied completely such enforcement. In such a clear-cut situation, it serves no useful purpose to delay the issuance of the judgment until a proposed judgment is submitted by the agency and reviewed by the respondent. This change conforms the Rule to the existing practice in most circuits. Other amendments are technical and no substantive change is intended. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Rule 19 formerly required a party who disagreed with the agencys proposed judgment to file a proposed judgment within 7 days. Under former Rule 26(a), 7 days always meant at least 9 days and could mean as many as 11 or even 13 days. Under current Rule 26(a), intermediate weekends and holidays are counted. Changing the period from 7 to 10 days offsets the change in computation approach. See the Note to Rule 26. Rule 20. Applicability of Rules to the Review or Enforcement of an Agency Order  All provisions of these rules, except Rules 314 and 2223, apply to the review or enforcement of an agency order. In these rules, appellant includes a petitioner or applicant, and appellee includes a respondent. (As amended Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 The proposed rule continues the present uniform practice of the circuits of regulating agency review or enforcement proceedings by the general rules applicable to appeals from judgments of the district courts. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. TITLE V. EXTRAORDINARY WRITS Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs (a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing. (1) A party petitioning for a writ of mandamus or prohibition directed to a court must file the petition with the circuit clerk and serve it on all parties to the proceeding in the trial court. The party must also provide a copy to the trial-court judge. All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes. (2) (A) The petition must be titled In re [name of petitioner]. (B) The petition must state: (i) the relief sought; (ii) the issues presented; (iii) the facts necessary to understand the issue presented by the petition; and (iv) the reasons why the writ should issue. (C) The petition must include a copy of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition. (3) Upon receiving the prescribed docket fee, the clerk must docket the petition and submit it to the court. (b) Denial; Order Directing Answer; Briefs; Precedence. (1) The court may deny the petition without an answer. Otherwise, it must order the respondent, if any, to answer within a fixed time. (2) The clerk must serve the order to respond on all persons directed to respond. (3) Two or more respondents may answer jointly. (4) The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals. (5) If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial-court judge or amicus curiae. (6) The proceeding must be given preference over ordinary civil cases. (7) The circuit clerk must send a copy of the final disposition to the trial-court judge. (c) Other Extraordinary Writs. An application for an extraordinary writ other than one provided for in Rule 21(a) must be made by filing a petition with the circuit clerk and serving it on the respondents. Proceedings on the application must conform, so far as is practicable, to the procedures prescribed in Rule 21(a) and (b). (d) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case. Except by the courts permission, and excluding the accompanying documents required by Rule 21(a)(2)(C): (1) a paper produced using a computer must not exceed 7,800 words; and (2) a handwritten or typewritten paper must not exceed 30 pages. (As amended Apr. 29, 1994 Dec. 1, 1994 Apr. 23, 1996 Dec. 1, 1996 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 28, 2016 Dec. 1, 2016 Apr. 25, 2019 Dec. 1, 2019  Notes of Advisory Committee on Rules1967 The authority of courts of appeals to issue extraordinary writs is derived from 28 U.S.C.  1651. Subdivisions (a) and (b) regulate in detail the procedure surrounding the writs most commonly soughtmandamus or prohibition directed to a judge or judges. Those subdivisions are based upon Supreme Court Rule 31, with certain changes which reflect the uniform practice among the circuits (Seventh Circuit Rule 19 is a typical circuit rule). Subdivision (c) sets out a very general procedure to be followed in applications for the variety of other writs which may be issued under the authority of 28 U.S.C.  1651. Notes of Advisory Committee on Rules1994 Amendment Subdivision (d) Notes of Advisory Committee on Rules1996 Amendment In most instances, a writ of mandamus or prohibition is not actually directed to a judge in any more personal way than is an order reversing a courts judgment. Most often a petition for a writ of mandamus seeks review of the intrinsic merits of a judges action and is in reality an adversary proceeding between the parties. See, e.g., Walker v. Columbia Broadcasting System, Inc Subdivision (a) The amendments require the petitioner to provide a copy of the petition to the trial court judge. This will alert the judge to the filing of the petition. This is necessary because the trial court judge is not treated as a respondent and, as a result, is not served. A companion amendment is made in subdivision (b). It requires the circuit clerk to send a copy of the disposition of the petition to the trial court judge. Subdivision (b) The court of appeals ordinarily will be adequately informed not only by the opinions or statements made by the trial court judge contemporaneously with the entry of the challenged order but also by the arguments made on behalf of the party opposing the relief. The latter does not create an attorney-client relationship between the partys attorney and the judge whose action is challenged, nor does it give rise to any right to compensation from the judge. If the court of appeals desires to hear from the trial court judge, however, the court may invite or order the judge to respond. In some instances, especially those involving court administration or the failure of a judge to act, it may be that no one other than the judge can provide a thorough explanation of the matters at issue. Because it is ordinarily undesirable to place the trial court judge, even temporarily, in an adversarial posture with a litigant, the rule permits a court of appeals to invite an amicus curiae amicus Subdivision (c) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2002 Amendment Subdivision (d). Rule 21(d) has been further amended to limit the length of papers filed under Rule 21. Changes Made After Publication and Comments. Committee Notes on Rules2016 Amendment The page limits previously employed in Rules 5, 21, 27, 35, and 40 have been largely overtaken by changes in technology. For papers produced using a computer, those page limits are now replaced by word limits. The word limits were derived from the current page limits using the assumption that one page is equivalent to 260 words. Papers produced using a computer must include the certificate of compliance required by Rule 32(g); Form 6 in the Appendix of Forms suffices to meet that requirement. Page limits are retained for papers prepared without the aid of a computer (i.e., handwritten or typewritten papers). For both the word limit and the page limit, the calculation excludes the accompanying documents required by Rule 21(a)(2)(C) and any items listed in Rule 32(f). Committee Notes on Rules2019 Amendment The term proof of service in subdivisions (a)(1) and (c) is deleted to reflect amendments to Rule 25(d) that eliminate the requirement of a proof of service when service is completed using a courts electronic filing system. TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS Rule 22. Habeas Corpus and Section 2255 Proceedings (a) Application for the Original Writ. An application for a writ of habeas corpus must be made to the appropriate district court. If made to a circuit judge, the application must be transferred to the appropriate district court. If a district court denies an application made or transferred to it, renewal of the application before a circuit judge is not permitted. The applicant may, under 28 U.S.C.  2253, appeal to the court of appeals from the district courts order denying the application. (b) Certificate of Appealability. (1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C.  2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C.  2253(c). If an applicant files a notice of appeal, the district clerk must send to the court of appeals the certificate (if any) and the statement described in Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C.  2254 or  2255 (if any), along with the notice of appeal and the file of the district-court proceedings. If the district judge has denied the certificate, the applicant may request a circuit judge to issue it. (2) A request addressed to the court of appeals may be considered by a circuit judge or judges, as the court prescribes. If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals. (3) A certificate of appealability is not required when a state or its representative or the United States or its representative appeals. (As amended Pub. L. 104132, title I,  103 Apr. 24, 1996 110 Stat. 1218 Apr. 24, 1998 Dec. 1, 1998 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1967 Subdivision (a) In re Gersing, Chapman v. Teets A court of appeals has no jurisdiction as a court to grant an original writ of habeas corpus, and courts of appeals have dismissed applications addressed to them. Loum v. Alvis In re Berry, Posey v. Dowd In re Burwell, Subdivision (b) While 28 U.S.C.  2253 does not authorize the court of appeals as a court to grant a certificate of probable cause, In re Burwell, Although 28 U.S.C.  2253 appears to require a certificate of probable cause even when an appeal is taken by a state or its representative, the legislative history strongly suggests that the intention of Congress was to require a certificate only in the case in which an appeal is taken by an applicant for the writ. See United States ex rel. Tillery v. Cavell United States ex rel. Tillery v. Cavell Buder v. Bell United States ex rel. Calhoun v. Pate State of Texas v. Graves United States ex rel. Carrol v. LaVallee Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only; in this rule, however, substantive changes are made in paragraphs (b)(1) and (b)(3). Subdivision (b), paragraph (1). Else v. Johnson Lyons v. Ohio Adult Parole Authority Hunter v. United States Subdivision (b), paragraph (3). Committee Notes on Rules2009 Amendment Subdivision (b)(1). Changes Made After Publication and Comment. At the Standing Committees direction, the language proposed for Appellate Rule 22(b) was circulated to the circuit clerks for their comment. Pursuant to comments received from the circuit clerks, the second sentence of Rule 22(b) was revised to make clear that the Rule requires the transmission of the record by the district court when an appeal is filed, regardless of whether the certificate of appealability was granted or denied by the district judge; a conforming change was made to the last sentence of the Committee Note. Amendment by Public Law 1996 Pub. L. 104132  (a)  Application for the original writ An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made to a circuit judge, the application will ordinarily be transferred to the appropriate district court. If an application is made to or transferred to the district court and denied, renewal of the application before a circuit judge is not favored; the proper remedy is by appeal to the court of appeals from the order of the district court denying the writ. (b)  Necessity of certificate of probable cause for appeal In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of probable cause is not required. Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding (a) Transfer of Custody Pending Review. Pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule. When, upon application, a custodian shows the need for a transfer, the court, justice, or judge rendering the decision under review may authorize the transfer and substitute the successor custodian as a party. (b) Detention or Release Pending Review of Decision Not to Release. While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. (c) Release Pending Review of Decision Ordering Release. While a decision ordering the release of a prisoner is under review, the prisoner mustunless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwisebe released on personal recognizance, with or without surety. (d) Modification of the Initial Order on Custody. An initial order governing the prisoners custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued. (As amended Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 The rule is the same as Supreme Court Rule 49, as amended on June 12, 1967 October 2, 1967 Notes of Advisory Committee on Rules1986 Amendment The amendments to Rules 23(b) and (c) are technical. No substantive change is intended. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Subdivison (d). When Rule 23 was adopted it used the same language as Supreme Court Rule 49, which then governed custody of prisoners in habeas corpus proceedings. The shall govern review language was drawn from the Supreme Court Rule. The Supreme Court has since amended its rule, now Rule 36, to say that the initial order shall continue in effect unless for reasons shown it is modified or a new order is entered. Rule 23 is amended to similarly state that the initial order continues in effect. The new language is clearer. It removes the possible implication that the initial order created law of the case, a strange notion to attach to an order regarding custody or release. Rule 24. Proceeding in Forma Pauperis (a) Leave to Proceed in Forma Pauperis. (1)  Motion in the District Court. (A) shows in the detail prescribed by Form 4 of the Appendix of Forms the partys inability to pay or to give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal. (2)  Action on the Motion. (3)  Prior Approval. (A) the district courtbefore or after the notice of appeal is filedcertifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or (B) a statute provides otherwise. (4)  Notice of District Courts Denial (A) denies a motion to proceed on appeal in forma pauperis; (B) certifies that the appeal is not taken in good faith; or (C) finds that the party is not otherwise entitled to proceed in forma pauperis. (5)  Motion in the Court of Appeals. (b) Leave to Proceed in Forma Pauperis on Appeal from the United States Tax Court or on Appeal or Review of an Administrative-Agency Proceeding. A party may file in the court of appeals a motion for leave to proceed on appeal in forma pauperis with an affidavit prescribed by Rule 24(a)(1): (1) in an appeal from the United States Tax Court; and (2) when an appeal or review of a proceeding before an administrative agency, board, commission, or officer proceeds directly in the court of appeals. (c) Leave to Use Original Record. A party allowed to proceed on appeal in forma pauperis may request that the appeal be heard on the original record without reproducing any part. (As amended Apr. 1, 1979 Aug. 1, 1979 Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 16, 2013 Dec. 1, 2013  Notes of Advisory Committee on Rules1967 Subdivision (a) Hayes v. United States cert. den Elkins v. United States United States v. Farley McGann v. United States Ragan v. Cox United States ex rel. Breedlove v. Dowd The second paragraph permits one whose indigency has been previously determined by the district court to proceed on appeal in forma pauperis without the necessity of a redetermination of indigency, while reserving to the district court its statutory authority to certify that the appeal is not taken in good faith, 28 U.S.C.  1915(a), and permitting an inquiry into whether the circumstances of the party who was originally entitled to proceed in forma pauperis have changed during the course of the litigation. Cf. Sixth Circuit Rule 26. The final paragraph establishes a subsequent motion in the court of appeals, rather than an appeal from the order of denial or from the certification of lack of good faith, as the proper procedure for calling in question the correctness of the action of the district court. The simple and expeditious motion procedure seems clearly preferable to an appeal. This paragraph applies only to applications for leave to appeal in forma pauperis. The order of a district court refusing leave to initiate an action in the district court in forma pauperis is reviewable on appeal. See Roberts v. United States District Court Subdivision (b) Notes of Advisory Committee on Rules1979 Amendment The proposed amendment reflects the change in the title of the Tax Court to United States Tax Court. See 26 U.S.C.  7441. Notes of Advisory Committee on Rules1986 Amendment The amendments to Rule 24(a) are technical. No substantive change is intended. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. The Advisory Committee deletes the language in subdivision (c) authorizing a party proceeding in forma pauperis to file papers in typewritten form because the authorization is unnecessary. The rules permit all parties to file typewritten documents. Committee Notes on Rules2002 Amendment Subdivision (a)(2). Rule 24(a)(2) has been amended to resolve this conflict. Recognizing that future legislation regarding prisoner litigation is likely, the Committee has not attempted to incorporate into Rule 24 all of the requirements of the current version of 28 U.S.C.  1915. Rather, the Committee has amended Rule 24(a)(2) to clarify that the rule is not meant to conflict with anything required by the PLRA or any other statute. Subdivision (a)(3). See, e.g., Morgan v. Haro Rule 24(a)(3) has been amended to resolve this conflict. Again, recognizing that future legislation regarding prisoner litigation is likely, the Committee has not attempted to incorporate into Rule 24 all of the requirements of the current version of 28 U.S.C.  1915. Rather, the Committee has amended Rule 24(a)(3) to clarify that the rule is not meant to conflict with anything required by the PLRA or any other statute. Changes Made After Publication and Comments. Committee Notes on Rules2013 Amendment Rule 24(b) currently refers to review of proceedings before an administrative agency, board, commission, or officer (including for the purpose of this rule the United States Tax Court). Experience suggests that Rule 24(b) contributes to confusion by fostering the impression that the Tax Court is an executive branch agency rather than a court. (As a general example of that confusion, appellate courts have returned Tax Court records to the Internal Revenue Service, believing the Tax Court to be part of that agency.) To remove this possible source of confusion, the quoted parenthetical is deleted from subdivision (b) and appeals from the Tax Court are separately listed in subdivision (b)s heading and in new subdivision (b)(1). Changes Made After Publication and Comment. TITLE VII. GENERAL PROVISIONS Rule 25. Filing and Service (a) Filing. (1)  Filing with the Clerk. (2)  Filing: Method and Timeliness. (A)  Nonelectronic Filing. (i)  In General. (ii)  A Brief or Appendix.  mailed to the clerk by first-class mail, or other class of mail that is at least as expeditious, postage prepaid; or  dispatched to a third-party commercial carrier for delivery to the clerk within 3 days. (iii)  Inmate Filing.  it is accompanied by: a declaration in compliance with 28 U.S.C.  1746or a notarized statementsetting out the date of deposit and stating that first-class postage is being prepaid; or evidence (such as a postmark or date stamp) showing that the paper was so deposited and that postage was prepaid; or  the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 25(a)(2)(A)(iii). (B)  Electronic Filing and Signing. (i)  By a Represented PersonGenerally Required; Exceptions. (ii)  By an Unrepresented PersonWhen Allowed or Required.  may file electronically only if allowed by court order or by local rule; and  may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions. (iii)  Signing. (iv)  Same as a Written Paper. (3)  Filing a Motion with a Judge. (4)  Clerks Refusal of Documents. (5)  Privacy Protection. (b) Service of All Papers Required. Unless a rule requires service by the clerk, a party must, at or before the time of filing a paper, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the partys counsel. (c) Manner of Service. (1) Nonelectronic service may be any of the following: (A) personal, including delivery to a responsible person at the office of counsel; (B) by mail; or (C) by third-party commercial carrier for delivery within 3 days. (2) Electronic service of a paper may be made (A) by sending it to a registered user by filing it with the courts electronic-filing system or (B) by sending it by other electronic means that the person to be served consented to in writing. (3) When reasonable considering such factors as the immediacy of the relief sought, distance, and cost, service on a party must be by a manner at least as expeditious as the manner used to file the paper with the court. (4) Service by mail or by commercial carrier is complete on mailing or delivery to the carrier. Service by electronic means is complete on filing or sending, unless the party making service is notified that the paper was not received by the party served. (d) Proof of Service. (1) A paper presented for filing must contain either of the following if it was served other than through the courts electronic-filing system: (A) an acknowledgment of service by the person served; or (B) proof of service consisting of a statement by the person who made service certifying: (i) the date and manner of service; (ii) the names of the persons served; and (iii) their mail or electronic addresses, facsimile numbers, or the addresses of the places of delivery, as appropriate for the manner of service. (2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule 25(a)(2)(A)(ii), the proof of service must also state the date and manner by which the document was mailed or dispatched to the clerk. (3) Proof of service may appear on or be affixed to the papers filed. (e) Number of Copies. When these rules require the filing or furnishing of a number of copies, a court may require a different number by local rule or by order in a particular case. (As amended Mar. 10, 1986 July 1, 1986 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Apr. 23, 1996 Dec. 1, 1996 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2016 Dec. 1, 2016 Apr. 26, 2018 Dec. 1, 2018 Apr. 25, 2019 Dec. 1, 2019 Apr. 11, 2022 Dec. 1, 2022  Notes of Advisory Committee on Rules1967 The rule that filing is not timely unless the papers filed are received within the time allowed is the familiar one. Ward v. Atlantic Coast Line R.R. Co Kahler-Ellis Co. v. Ohio Turnpike Commission A majority of the circuits now require service of all papers filed with the clerk. The usual provision in present rules is for service on adverse parties. In view of the extreme simplicity of service by mail, there seems to be no reason why a party who files a paper should not be required to serve all parties to the proceeding in the court of appeals, whether or not they may be deemed adverse. The common requirement of proof of service is retained, but the rule permits it to be made by simple certification, which may be endorsed on the copy which is filed. Notes of Advisory Committee on Rules1986 Amendment The amendments to Rules 25(a) and (b) are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment Subdivision (a) Notes of Advisory Committee on Rules1993 Amendment The amendment accompanies new subdivision (c) of Rule 4 and extends the holding in Houston v. Lack Notes of Advisory Committee on Rules1994 Amendment Subdivision (a) The Committee wishes to make it clear that the provision prohibiting a clerk from refusing a document does not mean that a clerks office may no longer screen documents to determine whether they comply with the rules. A court may delegate to the clerk authority to inform a party about any noncompliance with the rules and, if the party is willing to correct the document, to determine a date by which the corrected document must be resubmitted. If a party refuses to take the steps recommended by the clerk or if in the clerks judgment the party fails to correct the noncompliance, the clerk must refer the matter to the court for a ruling. Subdivision (d) The last sentence of subdivision (d) has been deleted as unnecessary. That sentence stated that a clerk could permit papers to be filed without acknowledgment or proof of service but must require that it be filed promptly thereafter. In light of the change made in subdivision (a) which states that a clerk may not refuse to accept for filing a document because it is not in the proper form, there is no further need for a provision stating that a clerk may accept a paper lacking a proof of service. The clerk must accept such a paper. That portion of the deleted sentence stating that the clerk must require that proof of service be filed promptly after the filing of the document if the proof is not filed concurrently with the document is also unnecessary. The second amendment requires that the certificate of service must state the addresses to which the papers were mailed or at which they were delivered. The Federal Circuit has a similar local rule, Fed.Cir.R. 25. Subdivision (e) A party must consult local rules to determine whether the court requires a different number than that specified in these national rules. The Committee believes it would be helpful if each circuit either: 1) included a chart at the beginning of its local rules showing the number of copies of each document required to be filed with the court along with citation to the controlling rule; or 2) made available such a chart to each party upon commencement of an appeal; or both. If a party fails to file the required number of copies, the failure does not create a jurisdictional defect. Rule 3(a) states: Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate. ... Notes of Advisory Committee on Rules1996 Amendment Subdivision (a) Subdivision (c) Subdivision (d) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only; a substantive amendment is made, however, in subdivision (a). Subdivision (a). Committee Notes on Rules2002 Amendment Rule 25(a)(2)(D) presently authorizes the courts of appeals to permit papers to be filed served Subdivision (c)(1)(D). A court of appeals may not, by local rule, forbid the use of electronic service on a party that has consented to its use. At the same time, courts have considerable discretion to use local rules to regulate electronic service. Difficult and presently unforeseeable questions are likely to arise as electronic service becomes more common. Courts have the flexibility to use their local rules to address those questions. For example, courts may use local rules to set forth specific procedures that a party must follow before the party will be deemed to have given written consent to electronic service. Parties also have the flexibility to define the terms of their consent; a partys consent to electronic service does not have to be all-or-nothing. For example, a party may consent to service by facsimile transmission, but not by electronic mail; or a party may consent to electronic service only if courtesy copies of all transmissions are mailed within 24 hours; or a party may consent to electronic service of only documents that were created with Corel WordPerfect. Subdivision (c)(2). Subdivision (c)(4). Changes Made After Publication and Comments. Subdivision (d)(1)(B)(iii). Changes Made After Publication and Comments. Committee Notes on Rules2006 Amendment Subdivision (a)(2)(D). A local rule may require that both electronic and hard copies of a paper be filed. Nothing in the last sentence of Rule 25(a)(2)(D) is meant to imply otherwise. Changes Made After Publication and Comment. 1 1 Although Rule 25(a)(2)(D) requires that hardship exceptions be included in any local rules that mandate electronic filing, it does not attempt to define the scope of those exceptions. Commentators were largely in agreement that the local rules should include hardship exceptions of some type. But commentators did not agree about the perimeters of those exceptions. The Advisory Committee believes that, at this point, it does not have enough experience with mandatory electronic filing to impose specific hardship exceptions on the circuits. Rather, the Advisory Committee believes that the circuits should be free for the time being to experiment with different formulations. The Committee Note has been changed to reflect the addition of the reasonable exceptions clause to the text of the rule. The Committee Note has also been changed to add the final two sentences. Those sentences were added at the request of Judge Sandra L. Lynch, a member of CACM [the Court Administration and Case Management Committee]. Judge Lynch believes that there will be few appellate judges who will want to receive only electronic copies of briefs, but there will be many who will want to receive electronic copies in addition to hard copies. Thus, the local rules of most circuits are likely to require a written copy or paper copy, in addition to an electronic copy. The problem is that the last sentence of Rule 25(a)(2)(D) provides that [a] paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules. Judge Lynchs concern is that this sentence may leave attorneys confused as to whether a local rule requiring a written or paper copy of a brief requires anything in addition to the electronic copy. The final two sentences of the Committee Note are intended to clarify the matter. Committee Notes on Rules2007 Amendment Subdivision (a)(5). Public Law 107347 Public Law 108281 See Fed. R. Bankr. P. Fed. R. Civ. P. Fed. R. Crim. P. Appellate Rule 25(a)(5) requires that, in cases that arise on appeal from a district court, bankruptcy appellate panel, or bankruptcy court, the privacy rule that applied to the case below will continue to apply to the case on appeal. With one exception, all other casessuch as cases involving the review or enforcement of an agency order, the review of a decision of the tax court, or the consideration of a petition for an extraordinary writwill be governed by Civil Rule 5.2. The only exception is when an extraordinary writ is sought in a criminal casethat is, a case in which the related trial-court proceeding is governed by Criminal Rule 49.1. In such a case, Criminal Rule 49.1 will govern in the court of appeals as well. Changes Made After Publication and Comment. Committee Notes on Rules2009 Amendment Under former Rule 26(a), short periods that span weekends or holidays were computed without counting those weekends or holidays. To specify that a period should be calculated by counting all intermediate days, including weekends or holidays, the Rules used the term calendar days. Rule 26(a) now takes a days-are-days approach under which all intermediate days are counted, no matter how short the period. Accordingly, 3 calendar days in subdivisions (a)(2)(B)(ii) and (c)(1)(C) is amended to read simply 3 days. Committee Notes on Rules2016 Amendment Rule 25(a)(2)(C) is revised to streamline and clarify the operation of the inmate-filing rule. The Rule requires the inmate to show timely deposit and prepayment of postage. The Rule is amended to specify that a paper is timely if it is accompanied by a declaration or notarized statement stating the date the paper was deposited in the institutions mail system and attesting to the prepayment of first-class postage. The declaration must state that first-class postage is being prepaid, not (as directed by the former Rule) that first-class postage has been prepaid. This change reflects the fact that inmates may need to rely upon the institution to affix postage after the inmate has deposited the document in the institutions mail system. New Form 7 in the Appendix of Forms sets out a suggested form of the declaration. The amended rule also provides that a paper is timely without a declaration or notarized statement if other evidence accompanying the paper shows that the paper was deposited on or before the due date and that postage was prepaid. If the paper is not accompanied by evidence that establishes timely deposit and prepayment of postage, then the court of appeals has discretion to accept a declaration or notarized statement at a later date. The Rule uses the phrase exercises its discretion to permitrather than simply permitsto help ensure that pro se inmate litigants are aware that a court will not necessarily forgive a failure to provide the declaration initially. Committee Notes on Rules2018 Amendment The amendments conform Rule 25 to the amendments to Federal Rule of Civil Procedure 5 on electronic filing, signature, and service. They establish, in Rule 25(a)(2)(B), a new national rule that generally makes electronic filing mandatory. The rule recognizes exceptions for persons proceeding without an attorney, exceptions for good cause, and variations established by local rule. The amendments establish national rules regarding the methods of signing and serving electronic documents in Rule 25(a)(2)(B)(iii) and (c)(2). Committee Notes on Rules2019 Amendment The amendment conforms Rule 25 to other federal rules regarding proof of service. As amended, subdivision (d) eliminates the requirement of proof of service or acknowledgment of service when service is made through a courts electronic-filing system. The notice of electronic filing generated by the courts system serves that purpose. Committee Notes on Rules2022 Amendment There are close parallels between the Social Security Act and the Railroad Retirement Act. One difference, however, is that judicial review in Social Security cases is initiated in the district courts, while judicial review in Railroad Retirement cases is initiated directly in the courts of appeals. Federal Rule of Civil Procedure 5.2 protects privacy in Social Security cases by limiting remote electronic access. The amendment extends those protections to Railroad Retirement cases.  References in Text The Federal Rules of Bankruptcy Procedure, referred to in subd. (a)(5), are set out in the Appendix to Title 11, Bankruptcy. The Federal Rules of Civil Procedure, referred to in subd. (a)(5), are set out in this Appendix. The Federal Rules of Criminal Procedure, referred to in subd. (a)(5), are set out in the Appendix to Title 18, Crimes and Criminal Procedure. The Railroad Retirement Act, referred to in subd. (a)(5), probably means the Railroad Retirement Act of 1974, which is act Aug. 29, 1935, ch. 812 Pub. L. 93445, title I,  101 Oct. 16, 1974 88 Stat. 1305 section 231 of Title 45 section 231t of Title 45 Rule 26. Computing and Extending Time (a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time. (1)  Period Stated in Days or a Longer Unit. (A) exclude the day of the event that triggers the period; (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (2)  Period Stated in Hours. (A) begin counting immediately on the occurrence of the event that triggers the period; (B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and (C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday. (3)  Inaccessibility of the Clerks Office. (A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or (B) during the last hour for filing under Rule 26(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday. (4)  Last Day Defined. (A) for electronic filing in the district court, at midnight in the courts time zone; (B) for electronic filing in the court of appeals, at midnight in the time zone of the circuit clerks principal office; (C) for filing under Rules 4(c)(1), 25(a)(2)(A)(ii), and 25(a)(2)(A)(iii)and filing by mail under Rule 13(a)(2)at the latest time for the method chosen for delivery to the post office, third-party commercial carrier, or prison mailing system; and (D) for filing by other means, when the clerks office is scheduled to close. (5)  Next Day Defined. (6)  Legal Holiday Defined. (A) the day set aside by statute for observing New Years Day, Martin Luther King Jr.s Birthday, Washingtons Birthday, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, or Christmas Day; (B) any day declared a holiday by the President or Congress; and (C) for periods that are measured after an event, any other day declared a holiday by the state where either of the following is located: the district court that rendered the challenged judgment or order, or the circuit clerks principal office. (b) Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file: (1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or (2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law. (c) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served, and the paper is not served electronically on the party or delivered to the party on the date stated in the proof of service, 3 days are added after the period would otherwise expire under Rule 26(a). (As amended Mar. 1, 1971 July 1, 1971 Mar. 10, 1986 July 1, 1986 Apr. 25, 1989 Dec. 1, 1989 Apr. 30, 1991 Dec. 1, 1991 Apr. 23, 1996 Dec. 1, 1996 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2016 Dec. 1, 2016 Apr. 26, 2018 Dec. 1, 2018 Apr. 25, 2019 Dec. 1, 2019 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1967 The provisions of this rule are based upon FRCP 6(a), (b) and (e). See also Supreme Court Rule 34 and FRCrP 45. Unlike FRCP 6(b), this rule, read with Rule 27, requires that every request for enlargement of time be made by motion, with proof of service on all parties. This is the simplest, most convenient way of keeping all parties advised of developments. By the terms of Rule 27(b) a motion for enlargement of time under Rule 26(b) may be entertained and acted upon immediately, subject to the right of any party to seek reconsideration. Thus the requirement of motion and notice will not delay the granting of relief of a kind which a court is inclined to grant as of course. Specifically, if a court is of the view that an extension of time sought before expiration of the period originally prescribed or as extended by a previous order ought to be granted in effect ex parte, as FRCP 6(b) permits, it may grant motions seeking such relief without delay. Notes of Advisory Committee on Rules1971 Amendment The amendment adds Columbus Day to the list of legal holidays to conform the subdivision to the Act of June 28, 1968 82 Stat. 250 January 1, 1971 The Act, which amended Title 5, U.S.C.  6103(a), changes the day on which certain holidays are to be observed. Washingtons Birthday, Memorial Day and Veterans Day are to be observed on the third Monday in February, the last Monday in May and the fourth Monday in October, respectively, rather than, as heretofore, on February 22, May 30, and November 11, respectively. Columbus Day is to be observed on the second Monday in October. New Years Day, Independence Day, Thanksgiving Day and Christmas continue to be observed on the traditional days. Notes of Advisory Committee on Rules1986 Amendment The Birthday of Martin Luther King, Jr., is added to the list of national holidays in Rule 26(a). The amendment to Rule 26(c) is technical. No substantive change is intended. Notes of Advisory Committee on Rules1989 Amendment The proposed amendment brings Rule 26(a) into conformity with the provisions of Rule 6(a) of the Rules of Civil Procedure, Rule 45(a) of the Rules of Criminal Procedure, and Rule 9006(a) of the Rules of Bankruptcy Procedure which allow additional time for filing whenever a clerks office is inaccessible on the last day for filing due to weather or other conditions. Notes of Advisory Committee on Rules1996 Amendment The amendment is a companion to the proposed amendments to Rule 25 that permit service on a party by commercial carrier. The amendments to subdivision (c) of this rule make the three-day extension applicable not only when service is accomplished by mail, but whenever delivery to the party being served occurs later than the date of service stated in the proof of service. When service is by mail or commercial carrier, the proof of service recites the date of mailing or delivery to the commercial carrier. If the party being served receives the paper on a later date, the three-day extension applies. If the party being served receives the paper on the same date as the date of service recited in the proof of service, the three-day extension is not available. The amendment also states that the three-day extension is three calendar days. Rule 26(a) states that when a period prescribed or allowed by the rules is less than seven days, intermediate Saturdays, Sundays, and legal holidays do not count. Whether the three-day extension in Rule 26(c) is such a period, meaning that three-days could actually be five or even six days, is unclear. The D.C. Circuit recently held that the parallel three-day extension provided in the Civil Rules is not such a period and that weekends and legal holidays do count. CNPq v. Inter-Trade, 50 F.3d 56 (D.C. Cir. 1995) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only; two substantive changes are made, however, in subdivision (a). Subdivision (a). Second, paragraph (a)(2) includes language clarifying that whenever the rules establish a time period in calendar days, weekends and legal holidays are counted. Committee Notes on Rules2002 Amendment Subdivision (a)(2). Changes Made After Publication and Comments. Subdivision (c). Changes Made After Publication and Comments. Committee Notes on Rules2005 Amendment Subdivision (a)(4). See Changes Made After Publication and Comments. Committee Notes on Rules2009 Amendment Subdivision (a). The time-computation provisions of subdivision (a) apply only when a time period must be computed. They do not apply when a fixed time to act is set. The amendments thus carry forward the approach taken in Violette v. P.A. Days, Inc. In re American Healthcare Management, Inc. November 1, 2007 Subdivision (a) does not apply when computing a time period set by a statute if the statute specifies a method of computing time. See, e.g. Subdivision (a)(1). See, e.g. Under former Rule 26(a), a period of 11 days or more was computed differently than a period of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in computing the longer periods, but excluded in computing the shorter periods. Former Rule 26(a) thus made computing deadlines unnecessarily complicated and led to counterintuitive results. For example, a 10-day period and a 14-day period that started on the same day usually ended on the same dayand the 10-day period not infrequently ended later than the 14-day period. See Miltimore Sales, Inc. v. Intl Rectifier, Inc. Under new subdivision (a)(1), all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other daysincluding intermediate Saturdays, Sundays, and legal holidaysare counted, with only one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday. An illustration is provided below in the discussion of subdivision (a)(5). Subdivision (a)(3) addresses filing deadlines that expire on a day when the clerks office is inaccessible. Where subdivision (a) formerly referred to the act, event, or default that triggers the deadline, new subdivision (a) refers simply to the event that triggers the deadline; this change in terminology is adopted for brevity and simplicity, and is not intended to change meaning. Periods previously expressed as less than 11 days will be shortened as a practical matter by the decision to count intermediate Saturdays, Sundays, and legal holidays in computing all periods. Many of those periods have been lengthened to compensate for the change. See, e.g. Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation methodtwo Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the periodthe 14th day after a Monday, for example, is a Monday. This advantage of using week-long periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods. Thirty-day and longer periods, however, were retained without change. Subdivision (a)(2). Under subdivision (a)(2), a deadline stated in hours starts to run immediately on the occurrence of the event that triggers the deadline. The deadline generally ends when the time expires. If, however, the time period expires at a specific time (say, 2:17 p.m.) on a Saturday, Sunday, or legal holiday, then the deadline is extended to the same time (2:17 p.m.) on the next day that is not a Saturday, Sunday, or legal holiday. Periods stated in hours are not to be rounded up to the next whole hour. Subdivision (a)(3) addresses situations when the clerks office is inaccessible during the last hour before a filing deadline expires. Subdivision (a)(2)(B) directs that every hour be counted. Thus, for example, a 72-hour period that commences at 10:00 a.m. on Friday, November 2, 2007 Subdivision (a)(3). Subdivision (a)(3)s extensions apply [u]nless the court orders otherwise. In some circumstances, the court might not wish a period of inaccessibility to trigger a full 24-hour extension; in those instances, the court can specify a briefer extension. The text of the rule no longer refers to weather or other conditions as the reason for the inaccessibility of the clerks office. The reference to weather was deleted from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system. Weather can still be a reason for inaccessibility of the clerks office. The rule does not attempt to define inaccessibility. Rather, the concept will continue to develop through caselaw, see, e.g., Tchakmakjian v. Department of Defense cf When Is Office of Clerk of Court Inaccessible Due to Weather or Other Conditions for Purpose of Computing Time Period for Filing Papers under Rule 6(a) of Federal Rules of Civil Procedure Subdivision (a)(4). 28 U.S.C.  452 provides that [a]ll courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders. A corresponding provision exists in Rule 45(a)(2). Some courts have held that these provisions permit an after-hours filing by handing the papers to an appropriate official. See, e.g., Casalduc v. Diaz Subdivision (a)(4)(A) addresses electronic filings in the district court. For example, subdivision (a)(4)(A) would apply to an electronically-filed notice of appeal. Subdivision (a)(4)(B) addresses electronic filings in the court of appeals. Subdivision (a)(4)(C) addresses filings by mail under Rules 25(a)(2)(B)(i) and 13(b), filings by third-party commercial carrier under Rule 25(a)(2)(B)(ii), and inmate filings under Rules 4(c)(1) and 25(a)(2)(C). For such filings, subdivision (a)(4)(C) provides that the last day ends at the latest time (prior to midnight in the filers time zone) that the filer can properly submit the filing to the post office, third-party commercial carrier, or prison mail system (as applicable) using the filers chosen method of submission. For example, if a correctional institutions legal mail systems rules of operation provide that items may only be placed in the mail system between 9:00 a.m. and 5:00 p.m., then the last day for filings under Rules 4(c)(1) and 25(a)(2)(C) by inmates in that institution ends at 5:00 p.m. As another example, if a filer uses a drop box maintained by a third-party commercial carrier, the last day ends at the time of that drop boxs last scheduled pickup. Filings by mail under Rule 13(b) continue to be subject to  7502 of the Internal Revenue Code, as amended, and the applicable regulations. Subdivision (a)(4)(D) addresses all other non-electronic filings; for such filings, the last day ends under (a)(4)(D) when the clerks office in which the filing is made is scheduled to close. Subdivision (a)(5). after See, e.g. before See, e.g. after September 1, 2007 September 4, 2007 before Subdivision (a)(6). For forward-counted periodsi.e., periods that are measured after an eventsubdivision (a)(6)(C) includes certain state holidays within the definition of legal holidays. However, state legal holidays are not recognized in computing backward-counted periods. For both forward- and backward-counted periods, the rule thus protects those who may be unsure of the effect of state holidays. For forward-counted deadlines, treating state holidays the same as federal holidays extends the deadline. Thus, someone who thought that the federal courts might be closed on a state holiday would be safeguarded against an inadvertent late filing. In contrast, for backward-counted deadlines, not giving state holidays the treatment of federal holidays allows filing on the state holiday itself rather than the day before. Take, for example, Monday, April 21, 2008 Subdivision (c). Rule 26(c) has been amended to eliminate uncertainty about application of the 3-day rule. Civil Rule 6(e) was amended in 2004 to eliminate similar uncertainty in the Civil Rules. Under the amendment, a party that is required or permitted to act within a prescribed period should first calculate that period, without reference to the 3-day rule provided by Rule 26(c), but with reference to the other time computation provisions of the Appellate Rules. After the party has identified the date on which the prescribed period would expire but for the operation of Rule 26(c), the party should add 3 calendar days. The party must act by the third day of the extension, unless that day is a Saturday, Sunday, or legal holiday, in which case the party must act by the next day that is not a Saturday, Sunday, or legal holiday. To illustrate: A paper is served by mail on Thursday, November 1, 2007 Changes Made After Publication and Comment. Committee Notes on Rules2016 Amendment Subdivision (a)(4)(C). Subdivision (c). Rule 25(c) was amended in 2002 to provide for service by electronic means. Although electronic transmission seemed virtually instantaneous even then, electronic service was included in the modes of service that allow 3 added days to act after being served. There were concerns that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments. Those concerns have been substantially alleviated by advances in technology and widespread skill in using electronic transmission. A parallel reason for allowing the 3 added days was that electronic service was authorized only with the consent of the person to be served. Concerns about the reliability of electronic transmission might have led to refusals of consent; the 3 added days were calculated to alleviate these concerns. Diminution of the concerns that prompted the decision to allow the 3 added days for electronic transmission is not the only reason for discarding this indulgence. Many rules have been changed to ease the task of computing time by adopting 7-, 14-, 21-, and 28-day periods that allow day-of-the-week counting. Adding 3 days at the end complicated the counting, and increased the occasions for further complication by invoking the provisions that apply when the last day is a Saturday, Sunday, or legal holiday. Electronic service after business hours, or just before or during a weekend or holiday, may result in a practical reduction in the time available to respond. Extensions of time may be warranted to prevent prejudice. Rule 26(c) has also been amended to refer to instances when a party may or must act . . . after being served rather than to instances when a party may or must act . . . after service. If, in future, an Appellate Rule sets a deadline for a party to act after that party itself effects service Committee Notes on Rules2018 Amendment The amendments adjust references to subdivisions of Rule 25 that have been renumbered. Committee Notes on Rules2019 Amendment The amendment in subdivision (c) simplifies the expression of the current rules for when three days are added. In addition, the amendment revises the subdivision to conform to the amendments to Rule 25(d). Committee Notes on Rules2023 Amendment The amendment adds Juneteenth National Independence Day to the list of legal holidays. See Juneteenth National Independence Day Act, P.L. 11717 Rule 26.1. Disclosure Statement (a) Nongovernmental Corporations. Any nongovernmental corporation that is a party to a proceeding in a court of appeals 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. The same requirement applies to a nongovernmental corporation that seeks to intervene. (b) Organizational Victims in Criminal Cases. In a criminal case, unless the government shows good cause, it must file a statement that identifies any organizational victim of the alleged criminal activity. If the organizational victim is a corporation, the statement must also disclose the information required by Rule 26.1(a) to the extent it can be obtained through due diligence. (c) Bankruptcy Cases. In a bankruptcy case, the debtor, the trustee, or, if neither is a party, the appellant must file a statement that: (1) identifies each debtor not named in the caption; and (2) for each debtor that is a corporation, discloses the information required by Rule 26.1(a). (d) Time for Filing; Supplemental Filing. The Rule 26.1 statement must: (1) be filed with the principal brief or upon filing a motion, response, petition, or answer in the court of appeals, whichever occurs first, unless a local rule requires earlier filing; (2) be included before the table of contents in the principal brief; and (3) be supplemented whenever the information required under Rule 26.1 changes. (e) Number of Copies. If the Rule 26.1 statement is filed before the principal brief, or if a supplemental statement is filed, an original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case. (As added Apr. 25, 1989 Dec. 1, 1989 Apr. 30, 1991 Dec. 1, 1991 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2019 Dec. 1, 2019  Notes of Advisory Committee on Rules1989 The purpose of this rule is to assist judges in making a determination of whether they have any interests in any of a partys related corporate entities that would disqualify the judges from hearing the appeal. The committee believes that this rule represents minimum disclosure requirements. If a Court of Appeals wishes to require additional information, a court is free to do so by local rule. However, the committee requests the courts to consider the desirability of uniformity and the burden that varying circuit rules creates on attorneys who practice in many circuits. Notes of Advisory Committee on Rules1994 Amendment The amendment requires a party to file three copies of the disclosure statement whenever the statement is filed before the partys principal brief. Because the statement is included in each copy of the partys brief, there is no need to require the filing of additional copies at that time. A court of appeals may require the filing of a different number of copies by local rule or by order in a particular case. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only; a substantive change is made, however, in subdivision (a). Subdivison [sic] (a). A disclosure statement assists a judge in ascertaining whether or not the judge has an interest that should cause the judge to recuse himself or herself from the case. Given that purpose, disclosure of entities that would not be adversely affected by a decision in the case is unnecessary. Disclosure of a partys parent corporation is necessary because a judgment against a subsidiary can negatively impact the parent. A judge who owns stock in the parent corporation, therefore, has an interest in litigation involving the subsidiary. The rule requires disclosure of all of a partys parent corporations meaning grandparent and great grandparent corporations as well. For example, if a party is a closely held corporation, the majority shareholder of which is a corporation formed by a publicly traded corporation for the purpose of acquiring and holding the shares of the party, the publicly traded grandparent corporation should be disclosed. Conversely, disclosure of a partys subsidiaries or affiliated corporations is ordinarily unnecessary. For example, if a party is a part owner of a corporation in which a judge owns stock, the possibility is quite remote that the judge might be biased by the fact that the judge and the litigant are co-owners of a corporation. The amendment, however, adds a requirement that the party lists all its stockholders that are publicly held companies owning 10% or more of the stock of the party. A judgment against a corporate party can adversely affect the value of the companys stock and, therefore, persons owning stock in the party have an interest in the outcome of the litigation. A judge owning stock in a corporate party ordinarily recuses himself or herself. The new requirement takes the analysis one step further and assumes that if a judge owns stock in a publicly held corporation which in turn owns 10% or more of the stock in the party, the judge may have sufficient interest in the litigation to require recusal. The 10% threshold ensures that the corporation in which the judge may own stock is itself sufficiently invested in the party that a judgment adverse to the party could have an adverse impact upon the investing corporation in which the judge may own stock. This requirement is modeled on the Seventh Circuits disclosure requirement. Subdivision (b). Committee Notes on Rules2002 Amendment a. Alternative One Subdivision (a). Rule 26.1(a) has been amended to require that nongovernmental corporate parties who currently do not have to file a corporate disclosure statementthat is, nongovernmental corporate parties who do not have any parent corporations and at least 10% of whose stock is not owned by any publicly held corporationinform the court of that fact. At present, when a corporate disclosure statement is not filed, courts do not know whether it has not been filed because there was nothing to report or because of ignorance of Rule 26.1(a). Rule 26.1(a) does not require the disclosure of all information that could conceivably be relevant to a judge who is trying to decide whether he or she has a financial interest in a case. Experience with divergent disclosure practices and improving technology may provide the foundation for more comprehensive disclosure requirements. The Judicial Conference, supported by the committees that work regularly with the Code of Judicial Conduct and by the Administrative Office of the United States Courts, is in the best position to develop any additional requirements and to adjust those requirements as technology and other developments warrant. Thus, Rule 26.1(a) has been amended to authorize the Judicial Conference to promulgate more detailed financial disclosure requirementsrequirements that might apply beyond nongovernmental corporate parties. As has been true in the past, Rule 26.1(a) does not forbid the promulgation of local rules that require disclosures in addition to those required by Rule 26.1(a) itself. However, along with the authority provided to the Judicial Conference to require additional disclosures is the authority to preempt any local rulemaking on the topic of financial disclosure. Subdivision (b). Subdivision (c). b. Alternative Two Subdivision (a). Rule 26.1(a) has been amended to require that nongovernmental corporate parties who have not been required to file a corporate disclosure statementthat is, nongovernmental corporate parties who do not have any parent corporations and at least 10% of whose stock is not owned by any publicly held corporationinform the court of that fact. At present, when a corporate disclosure statement is not filed, courts do not know whether it has not been filed because there was nothing to report or because of ignorance of Rule 26.1. Subdivision (b). Subdivision (c). Changes Made After Publication and Comments. The first versionAlternative Oneis the same as the version that was published, except that the rule has been amended to refer to any information that may be publicly designated required The second versionAlternative Twois the same as the version that was published, except that the Judicial Conference provisions have been eliminated. The Civil Rules Committee met several days after the Appellate Rules Committee and joined the Bankruptcy Rules Committee in disapproving the Judicial Conference provisions. Given the decreasing likelihood that the Judicial Conference provisions will be approved by the Standing Committee, I asked Prof. Schiltz to draft, and the Appellate Rules Committee to approve, a version of Rule 26.1 that omitted those provisions. Alternative Two was circulated to and approved by the Committee in late April. I should note that, at its April meeting, the Appellate Rules Committee discussed the financial disclosure provision that was approved by the Bankruptcy Rules Committee. That provision defines the scope of the financial disclosure obligation much differently than the provisions approved by the Appellate, Civil, and Criminal Rules Committees, which are based on existing Rule 26.1. For example, the bankruptcy provision requires disclosure when a party directly or indirectly owns 10 percent or more of any class of a publicly or Committee Notes on Rules2019 Amendment These amendments are designed to help judges determine whether they must recuse themselves because of an interest that could be affected substantially by the outcome of the proceeding. Code of Judicial Conduct, Canon 3(C)(1)(c) (2009). Subdivision (a) is amended to encompass nongovernmental corporations that seek to intervene on appeal. New subdivision (b) corresponds to the disclosure requirement in Criminal Rule 12.4(a)(2). Like Criminal Rule 12.4(a)(2), subdivision (b) requires the government to identify organizational victims to help judges comply with their obligations under the Code of Judicial Conduct. In some cases, there are many organizational victims, but the effect of the crime on each one is relatively small. In such cases, the amendment allows the government to show good cause to be relieved of making the disclosure statements because the organizations interests could not be affected substantially by the outcome of the proceedings. New subdivision (c) requires disclosure of the names of all the debtors in bankruptcy cases, because the names of the debtors are not always included in the caption in appeals. Subdivision (c) also imposes disclosure requirements concerning the ownership of corporate debtors. Subdivisions (d) and (e) (formerly subdivisions (b) and (c)) apply to all the disclosure requirements in Rule 26.1. Rule 27. Motions (a) In General. (1)  Application for Relief. (2)  Contents of a Motion. (A)  Grounds and Relief Sought. (B)  Accompanying Documents. (i) Any affidavit or other paper necessary to support a motion must be served and filed with the motion. (ii) An affidavit must contain only factual information, not legal argument. (iii) A motion seeking substantive relief must include a copy of the trial courts opinion or agencys decision as a separate exhibit. (C)  Documents Barred or Not Required. (i) A separate brief supporting or responding to a motion must not be filed. (ii) A notice of motion is not required. (iii) A proposed order is not required. (3)  Response. (A)  Time to file. (B)  Request for Affirmative Relief. (4)  Reply to Response. (b) Disposition of a Motion for a Procedural Order. The court may act on a motion for a procedural orderincluding a motion under Rule 26(b)at any time without awaiting a response, and may, by rule or by order in a particular case, authorize its clerk to act on specified types of procedural motions. A party adversely affected by the courts, or the clerks, action may file a motion to reconsider, vacate, or modify that action. Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed. (c) Power of a Single Judge to Entertain a Motion. A circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. A court of appeals may provide by rule or by order in a particular case that only the court may act on any motion or class of motions. The court may review the action of a single judge. (d) Form of Papers; Length Limits; Number of Copies. (1)  Format. (A)  Reproduction. (B)  Cover. (C)  Binding. (D)  Paper Size, Line Spacing, and Margins. (E)  Typeface and Type Styles. (2)  Length Limits. (A) a motion or response to a motion produced using a computer must not exceed 5,200 words; (B) a handwritten or typewritten motion or response to a motion must not exceed 20 pages; (C) a reply produced using a computer must not exceed 2,600 words; and (D) a handwritten or typewritten reply to a response must not exceed 10 pages. (3)  Number of Copies. (e) Oral Argument. A motion will be decided without oral argument unless the court orders otherwise. (As amended Apr. 1, 1979 Aug. 1, 1979 Apr. 25, 1989 Dec. 1, 1989 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2016 Dec. 1, 2016  Notes of Advisory Committee on Rules1967 Subdivisions (a) and (b) The term motions for procedural orders is used in subdivision (b) to describe motions which do not substantially affect the rights of the parties or the ultimate disposition of the appeal. To prevent delay in the disposition of such motions, subdivision (b) provides that they may be acted upon immediately without awaiting a response, subject to the right of any party who is adversely affected by the action to seek reconsideration. Subdivision (c) This subdivision empowers a single circuit judge to act upon virtually all requests for intermediate relief which may be made during the course of an appeal or other proceeding. By its terms he may entertain and act upon any motion other than a motion to dismiss or otherwise determine an appeal or other proceeding. But the relief sought must be relief which under these rules may properly be sought by motion. Examples of the power conferred on a single judge by this subdivision are: to extend the time for transmitting the record or docketing the appeal (Rules 11 and 12); to permit intervention in agency cases (Rule 15), or substitution in any case (Rule 43); to permit an appeal in forma pauperis (Rule 24); to enlarge any time period fixed by the rules other than that for initiating a proceeding in the court of appeals (Rule 26(b)); to permit the filing of a brief by amicus curiae (Rule 29); to authorize the filing of a deferred appendix (Rule 30(c)), or dispense with the requirement of an appendix in a specific case (Rule 30(f)), or permit carbon copies of briefs or appendices to be used (Rule 32(a)); to permit the filing of additional briefs (Rule 28(c)), or the filing of briefs of extraordinary length (Rule 28(g)); to postpone oral argument (Rule 34(a)), or grant additional time therefor (Rule 34(b)). Certain rules require that application for the relief or orders which they authorize be made by petition. Since relief under those rules may not properly be sought by motion, a single judge may not entertain requests for such relief. Thus a single judge may not act upon requests for permission to appeal (see Rules 5 and 6); or for mandamus or other extraordinary writs (see Rule 21), other than for stays or injunctions pendente lite A court of appeals may by order or rule abridge the power of a single judge if it is of the view that a motion or a class of motions should be disposed of by a panel. Exercise of any power granted a single judge is discretionary with the judge. The final sentence in this subdivision makes the disposition of any matter by a single judge subject to review by the court. Notes of Advisory Committee on Rules1979 Amendment The proposed amendment would give sanction to local rules in a number of circuits permitting the clerk to dispose of specified types of procedural motions. Notes of Advisory Committee on Rules1989 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1994 Amendment Subdivision (d) Committee Notes on Rules1998 Amendment In addition to amending Rule 27 to conform to uniform drafting standards, several substantive amendments are made. The Advisory Committee had been working on substantive amendments to Rule 27 just prior to completion of this larger project. Subdivision (a). Paragraph (1) also states that a motion must be in writing unless the court permits otherwise. The writing requirement has been implicit in the rule; the Advisory Committee decided to make it explicit. There are, however, instances in which a court may permit oral motions. Perhaps the most common such instance would be a motion made during oral argument in the presence of opposing counsel; for example, a request for permission to submit a supplemental brief on an issue raised by the court for the first time at oral argument. Rather than limit oral motions to those made during oral argument or, conversely, assume the propriety of making even extremely complex motions orally during argument, the Advisory Committee decided that it is better to leave the determination of the propriety of an oral motion to the courts discretion. The provision does not disturb the practice in those circuits that permit certain procedural motions, such as a motion for extension of time for filing a brief, to be made by telephone and ruled upon by the clerk. Paragraph (2) outlines the contents of a motion. It begins with the general requirement from the current rule that a motion must state with particularity the grounds supporting it and the relief requested. It adds a requirement that all legal arguments should be presented in the body of the motion; a separate brief or memorandum supporting or responding to a motion must not be filed. The Supreme Court uses this single document approach. Sup. Ct. R. 21.1. In furtherance of the requirement that all legal argument must be contained in the body of the motion, paragraph (2) also states that an affidavit that is attached to a motion should contain only factual information and not legal argument. Paragraph (2) further states that whenever a motion requests substantive relief, a copy of the trial courts opinion or agencys decision must be attached. Although it is common to present a district court with a proposed order along with the motion requesting relief, that is not the practice in the courts of appeals. A proposed order is not required and is not expected or desired. Nor is a notice of motion required. Paragraph (3) retains the provisions of the current rule concerning the filing of a response to a motion except that the time for responding has been expanded to 10 days rather than 7 days. Because the time periods in the rule apply to a substantive motion as well as a procedural motion, the longer time period may help reduce the number of motions for extension of time, or at least provide a more realistic time frame within which to make and dispose of such a motion. A party filing a response in opposition to a motion may also request affirmative relief. It is the Advisory Committees judgment that it is permissible to combine the response and the new motion in the same document. Indeed, because there may be substantial overlap of arguments in the response and in the request for affirmative relief, a combined document may be preferable. If a request for relief is combined with a response, the caption of the document must alert the court to the request for relief. The time for a response to such a new request and for reply to that response are governed by the general rules regulating responses and replies. Paragraph (4) is new. Two circuits currently have rules authorizing a reply. As a general matter, a reply should not reargue propositions presented in the motion or present matters that do not relate to the response. Sometimes matters relevant to the motion arise after the motion is filed; treatment of such matters in the reply is appropriate even though strictly speaking it may not relate to the response. Subdivision (b). Although the rule does not require a court to do so, it would be helpful if, whenever a motion is disposed of before receipt of any response from the opposing party, the ruling indicates that it was issued without awaiting a response. Such a statement will aid the opposing party in deciding whether to request reconsideration. The opposing party may have mailed a response about the time of the ruling and be uncertain whether the court has considered it. Subdivision (c). Subdivision (d). The format requirements have been moved from Rule 32(b) to paragraph (1) of this subdivision. No cover is required, but a caption is needed as well as a descriptive title indicating the purpose of the motion and identifying the party or parties for whom it is filed. Spiral binding or secure stapling at the upper left-hand corner satisfies the binding requirement. But they are not intended to be the exclusive methods of binding. Paragraph (2) establishes page limits; twenty pages for a motion or a response, and ten pages for a reply. Three circuits have established page limits by local rule. This rule does not establish special page limits for those instances in which a party combines a response to a motion with a new request for affirmative relief. Because a combined document most often will be used when there is substantial overlap in the argument in opposition to the motion and in the argument for the affirmative relief, twenty pages may be sufficient in most instances. If it is not, the party may request additional pages. If ten pages is insufficient for the original movant to both reply to the response, and respond to the new request for affirmative relief, two separate documents may be used or a request for additional pages may be made. The changes in paragraph (4) are stylistic only. No substantive changes are intended. Subdivision (e). Committee Notes on Rules2002 Amendment Subdivision (a)(3)(A). Fed. R. App. P. 26(a)(2) has been amended to provide that, in computing any period of time, a litigant should [e]xclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days, unless stated in calendar days. This change in the method of computing deadlines means that 10-day deadlines (such as that in subdivision (a)(3)(A)) have been lengthened as a practical matter. Under the new computation method, parties would never have less than 14 actual days to respond to motions, and legal holidays could extend that period to as much as 18 days. Permitting parties to take two weeks or more to respond to motions would introduce significant and unwarranted delay into appellate proceedings. For that reason, the 10-day deadline in subdivision (a)(3)(A) has been reduced to 8 days. This change will, as a practical matter, ensure that every party will have at least 10 actual daysbut, in the absence of a legal holiday, no more than 12 actual daysto respond to motions. The court continues to have discretion to shorten or extend that time in appropriate cases. Changes Made After Publication and Comments. Subdivision (a)(4). Fed. R. App. P. 26(a)(2) has been amended to provide that, in computing any period of time, a litigant should [e]xclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days, unless stated in calendar days. This change in the method of computing deadlines means that 7-day deadlines (such as that in subdivision (a)(4)) have been lengthened as a practical matter. Under the new computation method, parties would never have less than 9 actual days to reply to responses to motions, and legal holidays could extend that period to as much as 13 days. Permitting parties to take 9 or more days to reply to a response to a motion would introduce significant and unwarranted delay into appellate proceedings. For that reason, the 7-day deadline in subdivision (a)(4) has been reduced to 5 days. This change will, as a practical matter, ensure that every party will have 7 actual days to file replies to responses to motions (in the absence of a legal holiday). Changes Made After Publication and Comments. Subdivision (d)(1)(B). Changes Made After Publication and Comments. Committee Notes on Rules2005 Amendment Subdivision (d)(1)(E). Changes Made After Publication and Comments. Committee Notes on Rules2009 Amendment Subdivision (a)(3)(A). Subdivision (a)(4). Committee Notes on Rules2016 Amendment The page limits previously employed in Rules 5, 21, 27, 35, and 40 have been largely overtaken by changes in technology. For papers produced using a computer, those page limits are now replaced by word limits. The word limits were derived from the current page limits using the assumption that one page is equivalent to 260 words. Papers produced using a computer must include the certificate of compliance required by Rule 32(g); Form 6 in the Appendix of Forms suffices to meet that requirement. Page limits are retained for papers prepared without the aid of a computer (i.e., handwritten or typewritten papers). For both the word limit and the page limit, the calculation excludes the accompanying documents required by Rule 27(a)(2)(B) and any items listed in Rule 32(f). Rule 28. Briefs (a) Appellants Brief. The appellants brief must contain, under appropriate headings and in the order indicated: (1) a disclosure statement if required by Rule 26.1; (2) a table of contents, with page references; (3) a table of authoritiescases (alphabetically arranged), statutes, and other authoritieswith references to the pages of the brief where they are cited; (4) a jurisdictional statement, including: (A) the basis for the district courts or agencys subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (B) the basis for the court of appeals jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (C) the filing dates establishing the timeliness of the appeal or petition for review; and (D) an assertion that the appeal is from a final order or judgment that disposes of all parties claims, or information establishing the court of appeals jurisdiction on some other basis; (5) a statement of the issues presented for review; (6) a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record (see Rule 28(e)); (7) a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings; (8) the argument, which must contain: (A) appellants contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues); (9) a short conclusion stating the precise relief sought; and (10) the certificate of compliance, if required by Rule 32(g)(1). (b) Appellees Brief. The appellees brief must conform to the requirements of Rule 28(a)(1)(8) and (10), except that none of the following need appear unless the appellee is dissatisfied with the appellants statement: (1) the jurisdictional statement; (2) the statement of the issues; (3) the statement of the case; and (4) the statement of the standard of review. (c) Reply Brief. The appellant may file a brief in reply to the appellees brief. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authoritiescases (alphabetically arranged), statutes, and other authoritieswith references to the pages of the reply brief where they are cited. (d) References to Parties. In briefs and at oral argument, counsel should minimize use of the terms appellant and appellee. To make briefs clear, counsel should use the parties actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as the employee, the injured person, the taxpayer, the ship, the stevedore. (e) References to the Record. References to the parts of the record contained in the appendix filed with the appellants brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:  Answer p. 7;  Motion for Judgment p. 2;  Transcript p. 231. Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. (f) Reproduction of Statutes, Rules, Regulations, etc. If the courts determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end, or may be supplied to the court in pamphlet form. (g)  [Reserved] (h)  [Reserved] (i) Briefs in a Case Involving Multiple Appellants or Appellees. In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of anothers brief. Parties may also join in reply briefs. (j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a partys attention after the partys brief has been filedor after oral argument but before decisiona party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited. (As amended Apr. 30, 1979 Aug. 1, 1979 Mar. 10, 1986 July 1, 1986 Apr. 25, 1989 Dec. 1, 1989 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Apr. 16, 2013 Dec. 1, 2013 Apr. 28, 2016 Dec. 1, 2016 Apr. 25, 2019 Dec. 1, 2019  Notes of Advisory Committee on Rules1967 This rule is based upon Supreme Court Rule 40. For variations in present circuit rules on briefs see 2d Cir. Rule 17, 3d Cir. Rule 24, 5th Cir. Rule 24, and 7th Cir. Rule 17. All circuits now limit the number of pages of briefs, a majority limiting the brief to 50 pages of standard typographic printing. Fifty pages of standard typographic printing is the approximate equivalent of 70 pages of typewritten text, given the page sizes required by Rule 32 and the requirement set out there that text produced by a method other than standard typographic must be double spaced. Notes of Advisory Committee on Rules1979 Amendment The proposed amendment eliminates the distinction appearing in the present rule between the permissible length in pages of printed and typewritten briefs, investigation of the matter having disclosed that the number of words on the printed page is little if any larger than the number on a page typed in standard elite type. The provision is made subject to local rule to permit the court of appeals to require that typewritten briefs be typed in larger type and permit a correspondingly larger number of pages. Subdivision (j) Notes of Advisory Committee on Rules1986 Amendment While Rule 28(g) can be read as requiring that tables of authorities be included in a reply brief, such tables are often not included. Their absence impedes efficient use of the reply brief to ascertain the appellants response to a particular argument of the appellee or to the appellees use of a particular authority. The amendment to Rule 28(c) is intended to make it clear that such tables are required in reply briefs. The amendment to Rule 28(j) is technical. No substantive change is intended. Notes of Advisory Committee on Rules1989 Amendment The amendment provides that the corporate disclosure statement required by new rule 26.1 shall be treated similarly to tables of contents and tables of citations and shall not be counted for purposes of the number of pages allowed in a brief. Notes of Advisory Committee on Rules1991 Amendment Subdivision (a) Subdivision (b) Subdivision (h) Notes of Advisory Committee on Rules1993 Amendment Note to paragraph (a)(5). The amendment requires an appellants brief to state the standard of review applicable to each issue on appeal. Five circuits currently require these statements. Experience in those circuits indicates that requiring a statement of the standard of review generally results in arguments that are properly shaped in light of the standard. Notes of Advisory Committee on Rules1994 Amendment Subdivision (a) See Subdivision (b) Subdivision (g) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In additional to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Several substantive changes are made in this rule, however. Most of them are necessary to conform Rule 28 with changes recommended in Rule 32. Subdivision (a). An additional amendment of subdivision (a) is made to conform it with an amendment being made to Rule 32. Rule 32(a)(7) generally requires a brief to include a certificate of compliance with type-volume limitations contained in that rule. (No certificate is required if a brief does not exceed 30 pages, or 15 pages for a reply brief.) Rule 28(a) is amended to include that certificate in the list of items that must be included in a brief whenever it is required by Rule 32. Subdivision (g). Subdivision (h). Committee Notes on Rules2002 Amendment Subdivision (j). As amended, Rule 28(j) continues to require parties to state the reasons for supplemental citations, with reference to the part of a brief or oral argument to which the supplemental citations pertain. But Rule 28(j) no longer forbids argument. Rather, Rule 28(j) permits parties to decide for themselves what they wish to say about supplemental authorities. The only restriction upon parties is that the body of a Rule 28(j) letterthat is, the part of the letter that begins with the first word after the salutation and ends with the last word before the complimentary closecannot exceed 350 words. All words found in footnotes will count toward the 350-word limit. Changes Made After Publication and Comments. Committee Notes on Rules2005 Amendment Subdivision (c). Subdivision (h). Committee Notes on Rules2013 Amendment Subdivision (a). The statement of the case should describe the nature of the case, which includes (1) the facts relevant to the issues submitted for review; (2) those aspects of the cases procedural history that are necessary to understand the posture of the appeal or are relevant to the issues submitted for review; and (3) the rulings presented for review. The statement should be concise, and can include subheadings, particularly for the purpose of highlighting the rulings presented for review. Subdivision (b). Changes Made After Publication and Comment. During the comment period, concerns were raised that the deletion of current Rule 28(a)(6)s reference to the nature of the case, the course of proceedings, and the disposition below might lead readers to conclude that those items may no longer be included in the statement of the case. The Committee rejected that concern with respect to the nature of the case and the disposition below, because the Rule as published would naturally be read to permit continued inclusion of those items in the statement of the case. The Committee adhered to its view that the deletion of course of proceedings is useful because that phrase tends to elicit unnecessary detail; but to address the commenters concerns, the Committee added, to the revised Rule text, the phrase describing the relevant procedural history. The Committee augmented the Note to Rule 28(a) in two respects. It added a reference to Supreme Court Rule 24.1(g), upon which the proposed revision to Rule 28(a)(6) is modeled. And it addedas a second paragraph in the Notea discussion of the contents of the statement of the case. Committee Notes on Rules2016 Amendment Rule 28(a)(10) is revised to refer to Rule 32(g)(1) instead of Rule 32(a)(7), to reflect the relocation of the certificate-of-compliance requirement. Committee Notes on Rules2019 Amendment The phrase corporate disclosure statement is changed to disclosure statement to reflect the revision of Rule 26.1. Rule 28.1. Cross-Appeals (a) Applicability. This rule applies to a case in which a cross-appeal is filed. Rules 28(a)(c), 31(a)(1), 32(a)(2), and 32(a)(7)(A)(B) do not apply to such a case, except as otherwise provided in this rule. (b) Designation of Appellant. The party who files a notice of appeal first is the appellant for the purposes of this rule and Rules 30 and 34. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by the parties agreement or by court order. (c) Briefs. In a case involving a cross-appeal: (1)  Appellants Principal Brief. (2)  Appellees Principal and Response Brief. (3)  Appellants Response and Reply Brief. (A) the jurisdictional statement; (B) the statement of the issues; (C) the statement of the case; and (D) the statement of the standard of review. (4)  Appellees Reply Brief. (5)  No Further Briefs. (d) Cover. Except for filings by unrepresented parties, the cover of the appellants principal brief must be blue; the appellees principal and response brief, red; the appellants response and reply brief, yellow; the appellees reply brief, gray; an intervenors or amicus curiaes brief, green; and any supplemental brief, tan. The front cover of a brief must contain the information required by Rule 32(a)(2). (e) Length. (1)  Page Limitation. (2)  Type-Volume Limitation. (A) The appellants principal brief or the appellants response and reply brief is acceptable if it: (i) contains no more than 13,000 words; or (ii) uses a monospaced face and contains no more than 1,300 lines of text. (B) The appellees principal and response brief is acceptable if it: (i) contains no more than 15,300 words; or (ii) uses a monospaced face and contains no more than 1,500 lines of text. (C) The appellees reply brief is acceptable if it contains no more than half of the type volume specified in Rule 28.1(e)(2)(A). (f) Time to Serve and File a Brief. Briefs must be served and filed as follows: (1) the appellants principal brief, within 40 days after the record is filed; (2) the appellees principal and response brief, within 30 days after the appellants principal brief is served; (3) the appellants response and reply brief, within 30 days after the appellees principal and response brief is served; and (4) the appellees reply brief, within 21 days after the appellants response and reply brief is served, but at least 7 days before argument unless the court, for good cause, allows a later filing. (As added Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009 Apr. 16, 2013 Dec. 1, 2013 Apr. 28, 2016 Dec. 1, 2016 Apr. 26, 2018 Dec. 1, 2018  Committee Notes on Rules2005 The Federal Rules of Appellate Procedure have said very little about briefing in cases involving cross-appeals. This vacuum has frustrated judges, attorneys, and parties who have sought guidance in the rules. More importantly, this vacuum has been filled by conflicting local rules regarding such matters as the number and length of briefs, the colors of the covers of briefs, and the deadlines for serving and filing briefs. These local rules have created a hardship for attorneys who practice in more than one circuit. New Rule 28.1 provides a comprehensive set of rules governing briefing in cases involving cross-appeals. The few existing provisions regarding briefing in such cases have been moved into new Rule 28.1, and several new provisions have been added to fill the gaps in the existing rules. The new provisions reflect the practices of the large majority of circuits and, to a significant extent, the new provisions have been patterned after the requirements imposed by Rules 28, 31, and 32 on briefs filed in cases that do not involve cross-appeals. Subdivision (a). Subdivision (b). Subdivision (c). See The first brief is the appellants principal brief. That brieflike the appellants principal brief in a case that does not involve a cross-appealmust comply with Rule 28(a). The second brief is the appellees principal and response brief. Because this brief serves as the appellees principal brief on the merits of the cross-appeal, as well as the appellees response brief on the merits of the appeal, it must also comply with Rule 28(a), with the limited exceptions noted in the text of the rule. The third brief is the appellants response and reply brief. Like a response brief in a case that does not involve a cross-appealthat is, a response brief that does not also serve as a principal brief on the merits of a cross-appealthe appellants response and reply brief must comply with Rule 28(a)(2)(9) and (11), with the exceptions noted in the text of the rule. See See The fourth brief is the appellees reply brief. Like a reply brief in a case that does not involve a cross-appeal, it must comply with Rule 28(c), which essentially restates the requirements of Rule 28(a)(2)(3) and (11). (Rather than restating the requirements of Rule 28(a)(2)(3) and (11), as Rule 28(c) does, Rule 28.1(c)(4) includes a direct cross-reference.) The appellees reply brief must also be limited to the issues presented by the cross-appeal. Subdivision (d). Subdivision (e). Subdivision (f). Changes Made After Publication and Comments. Committee Notes on Rules2009 Amendment Subdivision (f)(4). Committee Notes on Rules2013 Amendment Subdivision (c). Changes Made After Publication and Comment. Committee Notes on Rules2016 Amendment When Rule 28.1 was adopted in 2005, it modeled its type-volume limits on those set forth in Rule 32(a)(7) for briefs in cases that did not involve a cross-appeal. At that time, Rule 32(a)(7)(B) set word limits based on an estimate of 280 words per page. In the course of adopting word limits for the length limits in Rules 5, 21, 27, 35, and 40, and responding to concern about the length of briefs, the Committee has reevaluated the conversion ratio (from pages to words) and decided to apply a conversion ratio of 260 words per page. Rules 28.1 and 32(a)(7)(B) are amended to reduce the word limits accordingly. In a complex case, a party may need to file a brief that exceeds the type-volume limitations specified in these rules, such as to include unusually voluminous information explaining relevant background or legal provisions or to respond to multiple briefs by opposing parties or amici. The Committee expects that courts will accommodate those situations by granting leave to exceed the type-volume limitations as appropriate. Committee Notes on Rules2018 Amendment Subdivision (f)(4) is amended to extend the period for filing a reply brief from 14 days to 21 days. Before the elimination of the three-day rule in Rule 26(c), attorneys were accustomed to a period of 17 days within which to file a reply brief, and the committee concluded that shortening the period from 17 days to 14 days could adversely affect the preparation of useful reply briefs. Because time periods are best measured in increments of 7 days, the period is extended to 21 days. Rule 29. Brief of an Amicus Curiae (a) During Initial Consideration of a Case on the Merits. (1)  Applicability. (2)  When Permitted. (3)  Motion for Leave to File. (A) the movants interest; and (B) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case. (4)  Contents and Form. (A) if the amicus curiae is a corporation, a disclosure statement like that required of parties by Rule 26.1; (B) a table of contents, with page references; (C) a table of authoritiescases (alphabetically arranged), statutes, and other authoritieswith references to the pages of the brief where they are cited; (D) a concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file; (E) unless the amicus curiae is one listed in the first sentence of Rule 29(a)(2), a statement that indicates whether: (i) a partys counsel authored the brief in whole or in part; (ii) a party or a partys counsel contributed money that was intended to fund preparing or submitting the brief; and (iii) a personother than the amicus curiae, its members, or its counselcontributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person; (F) an argument, which may be preceded by a summary and which need not include a statement of the applicable standard of review; and (G) a certificate of compliance under Rule 32(g)(1), if length is computed using a word or line limit. (5)  Length. (6)  Time for Filing. (7)  Reply Brief. (8)  Oral Argument. (b) During Consideration of Whether to Grant Rehearing. (1) Applicability. (2)  When Permitted. (3)  Motion for Leave to File. (4)  Contents, Form, and Length. (5)  Time for Filing. (As amended Apr. 24, 1998 Dec. 1, 1998 Apr. 28, 2010 Dec. 1, 2010 Apr. 28, 2016 Dec. 1, 2016 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1967 Only five circuits presently regulate the filing of the brief of an amicus curiae. See D.C. Cir. Rule 18(j); 1st Cir. Rule 23(10); 6th Cir. Rule 17(4); 9th Cir. Rule 18(9); 10th Cir. Rule 20. This rule follows the practice of a majority of circuits in requiring leave of court to file an amicus brief except under the circumstances stated therein. Compare Supreme Court Rule 42. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Several substantive changes are made in this rule, however. Subdivision (a). The District of Columbia is added to the list of entities allowed to file an amicus brief without consent of all parties. The other changes in this material are stylistic. Subdivision (b). The former rule only required the motion to identify the applicants interest and to generally state the reasons why an amicus brief is desirable. The amended rule additionally requires that the motion state the relevance of the matters asserted to the disposition of the case. As Sup. Ct. R. 37.1 states: An amicus curiae amicus curiae Because the relevance of the matters asserted by an amicus is ordinarily the most compelling reason for granting leave to file, the Committee believes that it is helpful to explicitly require such a showing. Subdivision (c). The requirement that the cover identify the party supported and indicate whether the amicus supports affirmance or reversal is an administrative aid. Paragraph (c)(3) requires an amicus to state the source of its authority to file. The amicus simply must identify which of the provisions in Rule 29(a) provides the basis for the amicus to file its brief. Subdivision (d). Subdivision (e). The 7-day stagger was adopted because it is long enough to permit an amicus to review the completed brief of the party being supported and avoid repetitious argument. A 7-day period also is short enough that no adjustment need be made in the opposing partys briefing schedule. The opposing party will have sufficient time to review arguments made by the amicus and address them in the partys responsive pleading. The timetable for filing the parties briefs is unaffected by this change. A court may grant permission to file an amicus brief in a context in which the party does not file a principal brief; for example, an amicus may be permitted to file in support of a partys petition for rehearing. In such instances the court will establish the filing time for the amicus. The former rules statement that a court may, for cause shown, grant leave for later filing is unnecessary. Rule 26(b) grants general authority to enlarge the time prescribed in these rules for good cause shown. This new rule, however, states that when a court grants permission for later filing, the court must specify the period within which an opposing party may answer the arguments of the amicus. Subdivision (f). Subdivision (g). Committee Notes on Rules2010 Amendment Subdivision (a). Subdivision (c). Subdivision (c)(1). Subdivision (c)(5). The disclosure requirement, which is modeled on Supreme Court Rule 37.6, serves to deter counsel from using an amicus brief to circumvent page limits on the parties briefs. See Glassroth v. Moore It should be noted that coordination between the amicus and the party whose position the amicus supports is desirable, to the extent that it helps to avoid duplicative arguments. This was particularly true prior to the 1998 amendments, when deadlines for amici were the same as those for the party whose position they supported. Now that the filing deadlines are staggered, coordination may not always be essential in order to avoid duplication. In any event, mere coordinationin the sense of sharing drafts of briefsneed not be disclosed under subdivision (c)(5). Cf. Changes Made After Publication and Comment. One change concerns the third subdivision of the authorship and funding disclosure requirement. As published, that third subdivision would have directed the filer to identif[y] every personother than the amicus curiae, its members, or its counselwho contributed money that was intended to fund preparing or submitting the brief. A commentator criticized this language as ambiguous, because the commentator argued that the provision as drafted did not make clear whether it is necessary for the brief to state that no such persons exist (if that is the case). The Committee revised this portion of the requirement to require a statement that indicates whether a personother than the amicus curiae, its members, or its counselcontributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person. Another set of changes concerns the placement of the disclosure requirement. As published, the Rule 29(c) proposal would have placed the new authorship and funding disclosure requirement in a new subdivision (c)(7) and would have moved the requirement of a corporate disclosure statement from the initial block of text in Rule 29(c) to a new subdivision (c)(6). New subdivision (c)(7) would have directed that the authorship and funding disclosure be made in the first footnote on the first page. Commentators criticized this directive as ambiguous and suggested that a better approach would be to direct that the authorship and funding disclosure follow the statement currently required by existing Rule 29(c)(3). The Committee found merit in these suggestions and decided to add the authorship and funding disclosure provision to existing subdivision (c)(3). However, a further revision to the structure of subdivision (c) was later made in response to style guidance from Professor Kimble, as discussed below. Subsequent to the Appellate Rules Committees meeting, the language adopted by the advisory committee was circulated to Professor Kimble for style review. Professor Kimble argued that the authorship and funding disclosure provision should be placed in a separate subdivision rather than being placed in existing subdivision (c)(3). In the light of the Appellate Rules Committees goal of listing the required components in the order in which they should appear in the brief, the decision was made to place the authorship and funding disclosure provision in a new subdivision following existing subdivision (c)(3). Though this requires renumbering the subparts of Rule 29(c), those subparts have only existed for about a decade (since the 1998 restyling) and citations to the specific subparts of Rule 29(c) do not appear in the caselaw. Given that this change entails renumbering some subparts of Rule 29(c), it also seems advisable to move the corporate disclosure provision into a new subdivision (c)(1) and to renumber the subsequent subdivisions accordingly. Professor Kimble also suggested two stylistic changes to the language of what will now become new subdivision (c)(5). First, instead of using the language unless filed by an amicus curiae listed in the first sentence of Rule 29(a), the provision now reads unless the amicus curiae is one listed in the first sentence of Rule 29(a). Second, the words indicates whether have been moved up into the introductory text in 29(c)(5) instead of being repeated at the outset of the three subsections (29(c)(5)(A), (B) and (C)). Also, a comma has been added to what will become Rule 29(c)(3). Committee Notes on Rules2016 Amendment Rule 29 is amended to address amicus filings in connection with requests for panel rehearing and rehearing en banc. Existing Rule 29 is renumbered Rule 29(a), and language is added to that subdivision (a) to state that its provisions apply to amicus filings during the courts initial consideration of a case on the merits. Rule 29(c)(7) becomes Rule 29(a)(4)(G) and is revised to accord with the relocation and revision of the certificate-of-compliance requirement. New Rule 32(g)(1) states that [a] brief submitted under Rules 28.1(e)(2), 29(b)(4), or 32(a)(7)(B) . . . must include a certificate of compliance. An amicus brief submitted during initial consideration of a case on the merits counts as a brief submitted under Rule[] . . . 32(a)(7)(B) if the amicus computes Rule 29(a)(5)s length limit by taking half of a type-volume limit in Rule 32(a)(7)(B). Rule 29(a)(4)(G) restates Rule 32(g)(1)s requirement functionally, by providing that a certificate of compliance is required if an amicus briefs length is computed using a word or line limit. New subdivision (b) is added to address amicus filings in connection with a petition for panel rehearing or rehearing en banc. Subdivision (b) sets default rules that apply when a court does not provide otherwise by local rule or by order in a case. A court remains free to adopt different rules governing whether amicus filings are permitted in connection with petitions for rehearing, and governing the procedures when such filings are permitted. Committee Notes on Rules2018 Amendment The amendment to subdivision (a)(2) authorizes orders or local rules that prohibit the filing of or permit the striking of an amicus brief if the brief would result in a judges disqualification. The amendment does not alter or address the standards for when an amicus brief requires a judges disqualification. A comparable amendment to subdivision (b) is not necessary. Subdivision (b)(1) currently authorizes local rules and orders governing filings during a courts consideration of whether to grant panel rehearing or rehearing en banc. These local rules or orders may prohibit the filing of or permit the striking of an amicus brief that would result in a judges disqualification. In addition, under subdivision (b)(2), a court may deny leave to file an amicus brief that would result in a judges disqualification. Rule 30. Appendix to the Briefs (a) Appellants Responsibility. (1)  Contents of the Appendix. (A) the relevant docket entries in the proceeding below; (B) the relevant portions of the pleadings, charge, findings, or opinion; (C) the judgment, order, or decision in question; and (D) other parts of the record to which the parties wish to direct the courts attention. (2)  Excluded Material. (3)  Time to File; Number of Copies. (b) All Parties Responsibilities. (1)  Determining the Contents of the Appendix. (2)  Costs of Appendix. (c) Deferred Appendix. (1)  Deferral Until After Briefs Are Filed. (2)  References to the Record. (A) If the deferred appendix is used, the parties may cite in their briefs the pertinent pages of the record. When the appendix is prepared, the record pages cited in the briefs must be indicated by inserting record page numbers, in brackets, at places in the appendix where those pages of the record appear. (B) A party who wants to refer directly to pages of the appendix may serve and file copies of the brief within the time required by Rule 31(a), containing appropriate references to pertinent pages of the record. In that event, within 14 days after the appendix is filed, the party must serve and file copies of the brief, containing references to the pages of the appendix in place of or in addition to the references to the pertinent pages of the record. Except for the correction of typographical errors, no other changes may be made to the brief. (d) Format of the Appendix. The appendix must begin with a table of contents identifying the page at which each part begins. The relevant docket entries must follow the table of contents. Other parts of the record must follow chronologically. When pages from the transcript of proceedings are placed in the appendix, the transcript page numbers must be shown in brackets immediately before the included pages. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) should be omitted. (e) Reproduction of Exhibits. Exhibits designated for inclusion in the appendix may be reproduced in a separate volume, or volumes, suitably indexed. Four copies must be filed with the appendix, and one copy must be served on counsel for each separately represented party. If a transcript of a proceeding before an administrative agency, board, commission, or officer was used in a district-court action and has been designated for inclusion in the appendix, the transcript must be placed in the appendix as an exhibit. (f) Appeal on the Original Record Without an Appendix. The court may, either by rule for all cases or classes of cases or by order in a particular case, dispense with the appendix and permit an appeal to proceed on the original record with any copies of the record, or relevant parts, that the court may order the parties to file. (As amended Mar. 30, 1970 July 1, 1970 Mar. 10, 1986 July 1, 1986 Apr. 30, 1991 Dec. 1, 1991 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1967 Subdivision (a) Subdivision (b) Under the practice by which each party files his own appendix the resulting reproduction of essential parts of the record is often fragmentary; it is not infrequently necessary to piece several appendices together to arrive at a usable reproduction. Too, there seems to be a tendency on the part of some appellants to reproduce less than what is necessary for a determination of the issues presented (see Moran Towing Corp. v. M. A. Gammino Construction Co Walters v. Shari Music Publishing Corp Morrison v. Texas Co Under the proposed rule responsibility for the preparation of the appendix is placed on the appellant. If the appellee feels that the appellant has omitted essential portions of the record, he may require the appellant to include such portions in the appendix. The appellant is protected against a demand that he reproduce parts which he considers unnecessary by the provisions entitling him to require the appellee to advance the costs of reproducing such parts and authorizing denial of costs for matter unnecessarily reproduced. Subdivision (c) Subdivision (e) Subdivision (f) Since 1962 the Ninth Circuit has permitted all appeals to be heard on the original record and a very limited number of copies. Under the practice as adopted in 1962, any party to an appeal could elect to have the appeal heard on the original record and two copies thereof rather than on the printed record theretofore required. The resulting substantial saving of printing costs led to the election of the new practice in virtually all cases, and by 1967 the use of printed records had ceased. By a recent amendment, the Ninth Circuit has abolished the printed record altogether. Its rules now provide that all appeals are to be heard on the original record, and it has reduced the number of copies required to two sets of copies of the transmitted original papers (excluding copies of exhibits, which need not be filed unless specifically ordered). See 9 Cir. Rule 10, as amended June 2, 1967 September 1, 1967 The judges of the Court of Appeals for the Ninth Circuit have expressed complete satisfaction with the practice there in use and have suggested that attention be called to the advantages which it offers in terms of reducing cost. Notes of Advisory Committee on Rules1970 Amendment Subdivision (a) Subdivision (c) Notes of Advisory Committee on Rules1986 Amendment Subdivision (a). United States v. Noall, Drewett v. Aetna Cas. & Sur. Co., Volkswagenwerk Aktiengesellschaft v. Church, There are occasions when such trial court memoranda have independent relevance in the appellate litigation. For instance, there may be a dispute as to whether a particular point was raised or whether a concession was made in the district court. In such circumstances, it is appropriate to include pertinent sections of such memoranda in the appendix. Subdivision (b). Brennan v. Local 357, International Brotherhood of Teamsters, Roadway Express, Inc. v. Piper, Technical amendments also are made to subdivisions (a), (b) and (c) which are not intended to be substantive changes. Taxation of Fees in Appeals in Which the Requirement of an Appendix Is Dispensed With The Judicial Conference of the United States at its session on October 28th and 29th approved the following resolution relating to fees to be taxed in the courts of appeals as submitted by the Judicial Council of the Ninth Circuit with the proviso that its application to any court of appeals shall be at the election of each such court: For some time it has been the practice in the Ninth Circuit Court of Appeals to dispense with an appendix in an appellate record and to hear the appeal on the original record, with a number of copies thereof being supplied (Rule 30f, Federal Rules of Appellate Procedure). It has been the practice of the Court to tax a fee of $5 in small records and $10 in large records for the time of the clerk involved in preparing such appeals and by way of reimbursement for postage expense. Judicial Conference approval heretofore has not been secured and the Judicial Council of the Ninth Circuit now seeks to fix a flat fee of $15 to be charged as fees for costs to be charged by any Notes of Advisory Committee on Rules1991 Amendment Subdivision (b) Notes of Advisory Committee on Rules1994 Amendment Subdivision (a) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Subdivision (a). Subdivision (c). Subdivision (d). Committee Notes on Rules2009 Amendment Subdivision (b)(1). Rule 31. Serving and Filing Briefs (a) Time to Serve and File a Brief. (1) The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellants brief is served. The appellant may serve and file a reply brief within 21 days after service of the appellees brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing. (2) A court of appeals that routinely considers cases on the merits promptly after the briefs are filed may shorten the time to serve and file briefs, either by local rule or by order in a particular case. (b) Number of Copies. Twenty-five copies of each brief must be filed with the clerk and 2 copies must be served on each unrepresented party and on counsel for each separately represented party. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on each unrepresented party and on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number. (c) Consequence of Failure to File. If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission. (As amended Mar. 30, 1970 July 1, 1970 Mar. 10, 1986 July 1, 1986 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Mar. 26, 2009 Dec. 1, 2009 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1967 A majority of the circuits now require the brief of the appellant to be filed within 30 days from the date on which the record is filed. But in those circuits an exchange of designations is unnecessary in the preparation of the appendix. The appellant files with his brief an appendix containing the parts of the record which he deems essential. If the appellee considers other parts essential, he includes those parts in his own appendix. Since the proposed rule requires the appellant to file with his brief an appendix containing necessary parts of the record as designated by both parties, the rule allows the appellant 40 days in order to provide time for the exchange of designations respecting the content of the appendix (see Rule 30(b)). Notes of Advisory Committee on Rules1970 Amendment The time prescribed by Rule 31(a) for preparing briefs40 days to the appellant, 30 days to the appelleeis well within the time that must ordinarily elapse in most circuits before an appeal can be reached for consideration. In those circuits, the time prescribed by the Rule should not be disturbed. But if a court of appeals maintains a current calendar, that is, if an appeal can be heard as soon as the briefs have been filed, or if the practice of the court permits the submission of appeals for preliminary consideration as soon as the briefs have been filed, the court should be free to prescribe shorter periods in the interest of expediting decision. Notes of Advisory Committee on Rules1986 Amendment The amendments to Rules 31(a) and (c) are technical. No substantive change is intended. Notes of Advisory Committee on Rules1994 Amendment Subdivision (b) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only; a substantive change is made, however, in subdivision (b). Subdivision (a). Subdivision (b). Committee Notes on Rules2002 Amendment Subdivision (b). Changes Made After Publication and Comments. Committee Notes on Rules2009 Amendment Subdivision (a)(1) Committee Notes on Rules2018 Amendment Subdivision (a)(1) is revised to extend the period for filing a reply brief from 14 days to 21 days. Before the elimination of the three-day rule in Rule 26(c), attorneys were accustomed to a period of 17 days within which to file a reply brief, and the committee concluded that shortening the period from 17 days to 14 days could adversely affect the preparation of useful reply briefs. Because time periods are best measured in increments of 7 days, the period is extended to 21 days. Rule 32. Form of Briefs, Appendices, and Other Papers (a) Form of a Brief. (1)  Reproduction. (A) A brief may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used. (B) Text must be reproduced with a clarity that equals or exceeds the output of a laser printer. (C) Photographs, illustrations, and tables may be reproduced by any method that results in a good copy of the original; a glossy finish is acceptable if the original is glossy. (2)  Cover. (A) the number of the case centered at the top; (B) the name of the court; (C) the title of the case (see Rule 12(a)); (D) the nature of the proceeding (e.g., Appeal, Petition for Review) and the name of the court, agency, or board below; (E) the title of the brief, identifying the party or parties for whom the brief is filed; and (F) the name, office address, and telephone number of counsel representing the party for whom the brief is filed. (3)  Binding (4)  Paper Size, Line Spacing, and Margins. (5)  Typeface. (A) A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions. A proportionally spaced face must be 14-point or larger. (B) A monospaced face may not contain more than 1012 characters per inch. (6)  Type Styles. (7)  Length. (A)  Page Limitation. (B)  Type-Volume Limitation. (i) A principal brief is acceptable if it:  contains no more than 13,000 words; or  uses a monospaced face and contains no more than 1,300 lines of text. (ii) A reply brief is acceptable if it contains no more than half of the type volume specified in Rule 32(a)(7)(B)(i). (b) Form of an Appendix. An appendix must comply with Rule 32(a)(1), (2), (3), and (4), with the following exceptions: (1) The cover of a separately bound appendix must be white. (2) An appendix may include a legible photocopy of any document found in the record or of a printed judicial or agency decision. (3) When necessary to facilitate inclusion of odd-sized documents such as technical drawings, an appendix may be a size other than 812 by 11 inches, and need not lie reasonably flat when opened. (c) Form of Other Papers. (1)  Motion. (2)  Other Papers. (A) A cover is not necessary if the caption and signature page of the paper together contain the information required by Rule 32(a)(2). If a cover is used, it must be white. (B) Rule 32(a)(7) does not apply. (d) Signature. Every brief, motion, or other paper filed with the court must be signed by the party filing the paper or, if the party is represented, by one of the partys attorneys. (e) Local Variation. Every court of appeals must accept documents that comply with the form requirements of this rule and the length limits set by these rules. By local rule or order in a particular case, a court of appeals may accept documents that do not meet all the form requirements of this rule or the length limits set by these rules. (f) Items Excluded from Length. In computing any length limit, headings, footnotes, and quotations count toward the limit but the following items do not:  cover page;  disclosure statement;  table of contents;  table of citations;  statement regarding oral argument;  addendum containing statutes, rules, or regulations;  certificate of counsel;  signature block;  proof of service; and  any item specifically excluded by these rules or by local rule. (g) Certificate of Compliance. (1)  Briefs and Papers That Require a Certificate. (2)  Acceptable Form. (As amended Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Apr. 28, 2016 Dec. 1, 2016 Apr. 25, 2019 Dec. 1, 2019  Notes of Advisory Committee on Rules1967 Only two methods of printing are now generally recognized by the circuitsstandard typographic printing and the offset duplicating process (multilith). A third, mimeographing, is permitted in the Fifth Circuit. The District of Columbia, Ninth, and Tenth Circuits permit records to be reproduced by copying processes. The Committee feels that recent and impending advances in the arts of duplicating and copying warrant experimentation with less costly forms of reproduction than those now generally authorized. The proposed rule permits, in effect, the use of any process other than the carbon copy process which produces a clean, readable page. What constitutes such is left in first instance to the parties and ultimately to the court to determine. The final sentence of the first paragraph of subdivision (a) is added to allow the use of multilith, mimeograph, or other forms of copies of the reporters original transcript whenever such are available. Committee Notes on Rules1998 Amendment In addition to amending Rule 32 to conform to uniform drafting standards, several substantive amendments are made. The Advisory Committee had been working on substantive amendments to Rule 32 for some time prior to completion of this larger project. Subdivison (a). Paragraph (a)(1). The rule permits the use of light paper, not just white paper. Cream and buff colored paper, including recycled paper, are acceptable. The rule permits printing on only one side of the paper. Although some argue that paper could be saved by allowing double-sided printing, others argue that in order to preserve legibility a heavier weight paper would be needed, resulting in little, if any, paper saving. In addition, the blank sides of a brief are commonly used by judges and their clerks for making notes about the case. Because photocopying is inexpensive and widely available and because use of carbon paper is now very rare, all references to the use of carbon copies have been deleted. The rule requires that the text be reproduced with a clarity that equals or exceeds the output of a laser printer. That means that the method used must have a print resolution of 300 dots per inch (dpi) or more. This will ensure the legibility of the brief. A brief produced by a typewriter or a daisy wheel printer, as well as one produced by a laser printer, has a print resolution of 300 dpi or more. But a brief produced by a dot-matrix printer, fax machine, or portable printer that uses heat or dye transfer methods does not. Some ink jet printers are 300 dpi or more, but some are 216 dpi and would not be sufficient. Photographs, illustrations, and tables may be reproduced by any method that results in a good copy. Paragraph (a)(2). The rule requires that the number of the case be centered at the top of the front cover of a brief. This will aid in identification of the brief. The idea was drawn from a local rule. The rule also requires that the title of the brief identify the party or parties on whose behalf the brief is filed. When there are multiple appellants or appellees, the information is necessary to the court. If, however, the brief is filed on behalf of all appellants or appellees, it may so indicate. Further, it may be possible to identify the class of parties on whose behalf the brief is filed. Otherwise, it may be necessary to name each party. The rule also requires that attorneys telephone numbers appear on the front cover of a brief or appendix. Paragraph (a)(3). The rule requires a brief to be bound in any manner that is secure, does not obscure the text, and that permits the brief to lie reasonably flat when open. Many judges and most court employees do much of their work at computer keyboards and a brief that lies flat when open is significantly more convenient. One circuit already has such a requirement and another states a preference for it. While a spiral binding would comply with this requirement, it is not intended to be the exclusive method of binding. Stapling a brief at the upper left-hand corner also satisfies this requirement as long as it is sufficiently secure. Paragraph (a)(4). The provisions for pamphlet-size briefs are deleted because their use is so rare. If a circuit wishes to authorize their use, it has authority to do so under subdivision (d) of this rule. Paragraph (a)(5). This paragraph and the next one, governing type style, are new. The existing rule simply states that a brief produced by the standard typographic process must be printed in at least 11 point type, or if produced in any other manner, the lines of text must be double spaced. Today few briefs are produced by commercial printers or by typewriters; most are produced on and printed by computer. The availability of computer fonts in a variety of sizes and styles has given rise to local rules limiting type styles. The Advisory Committee believes that some standards are needed both to ensure that all litigants have an equal opportunity to present their material and to ensure that the briefs are easily legible. With regard to typeface there are two options: proportionally-spaced typeface or monospaced typeface. A proportionally-spaced typeface gives a different amount of horizontal space to characters depending upon the width of the character. A capital M is given more horizontal space than a lower case i. The rule requires that a proportionally-spaced typeface have serifs. Serifs are small horizontal or vertical strokes at the ends of the lines that make up the letters and numbers. Studies have shown that long passages of serif type are easier to read and comprehend than long passages of sans-serif type. The rule accordingly limits the principal sections of submissions to serif type, although sans-serif type may be used in headings and captions. This is the same approach magazines, newspapers, and commercial printers take. Look at a professionally printed brief; you will find sans-serif type confined to captions, if it is used at all. The next line shows two characters enlarged for detail. The first has serifs, the second does not. Y Y So that the type is easily legible, the rule requires a minimum type size of 14 points for proportionally-spaced typeface. A monospaced typeface is one in which all characters have the same advance width. That means that each character is given the same horizontal space on the line. A wide letter such as a capital M and a narrow letter such as a lower case i are given the same space. Most typewriters produce mono-spaced type, and most computers also can do so using fonts with names such as Courier. This sentence is in a proportionally spaced font; as you can see, the m and i have different widths. This sentence is in a monospaced font; as you can see, the m and i have the same width. The rule requires use of a monospaced typeface that produces no more than 1012 characters per inch. A standard typewriter with pica type produces a monospaced typeface with 10 characters per inch (cpi). That is the ideal monospaced typeface. The rule permits up to 1012 cpi because some computer software programs contain monospaced fonts that purport to produce 10 cpi but that in fact produce slightly more than 10 cpi. In order to avoid the need to reprint a brief produced in good faith reliance upon such a program, the rule permits a bit of leeway. A monospace typeface with no more than 10 cpi is preferred. Paragraph (a)(6). The rule requires use of plain roman, that is not italic or script, type. Italics and boldface may be used for emphasis. Italicizing case names is preferred but underlining may be used. Paragraph (a)(7). Subparagraph (a)(7)(A) contains a safe-harbor provision. A principal brief that does not exceed 30 pages complies with the type-volume limitation without further question or certification. A reply brief that does not exceed 15 pages is similarly treated. The current limit is 50 pages but that limit was established when most briefs were produced on typewriters. The widespread use of personal computers has made a multitude of printing options available to practitioners. Use of a proportional typeface alone can greatly increase the amount of material per page as compared with use of a monospace typeface. Even though the rule requires use of 14-point proportional type, there is great variation in the x-height of different 14-point typefaces. Selection of a typeface with a small x-height increases the amount of text per page. Computers also make possible fine gradations in spacing between lines and tight tracking between letters and words. All of this, and more, have made the 50-page limit virtually meaningless. Establishing a safe-harbor of 50 pages would permit a person who makes use of the multitude of printing tricks available with most personal computers to file a brief far longer than the old 50-page brief. Therefore, as to those briefs not subject to any other volume control than a page limit, a 30-page limit is imposed. The limits in subparagraph (B) approximate the current 50-page limit and compliance with them is easy even for a person without a personal computer. The aim of these provisions is to create a level playing field. The rule gives every party an equal opportunity to make arguments, without permitting those with the best in-house typesetting an opportunity to expand their submissions. The length can be determined either by counting words or lines. That is, the length of a brief is determined not by the number of pages but by the number of words or lines in the brief. This gives every party the same opportunity to present an argument without regard to the typeface used and eliminates any incentive to use footnotes or typographical tricks to squeeze more material onto a page. The word counting method can be used with any typeface. A monospaced brief can meet the volume limitation by using the word or a line count. If the line counting method is used, the number of lines may not exceed 1,30026 lines per page in a 50-page brief. The number of lines is easily counted manually. Line counting is not sufficient if a proportionally spaced typeface is used, because the amount of material per line can vary widely. A brief using the type-volume limitations in subparagraph (B) must include a certificate by the attorney, or party proceeding pro se, that the brief complies with the limitation. The rule permits the person preparing the certification to rely upon the word or line count of the word-processing system used to prepare the brief. Currently, Rule 28(g) governs the length of a brief. Rule 28(g) begins with the words [e]xcept by permission of the court, signaling that a party may file a motion to exceed the limits established in the rule. The absence of similar language in Rule 32 does not mean that the Advisory Committee intends to prohibit motions to deviate from the requirements of the rule. The Advisory Committee does not believe that any such language is needed to authorize such a motion. Subdivision (b). The provisions governing the form of a brief generally apply to an appendix. The rule recognizes, however, that an appendix is usually produced by photocopying existing documents. The rule requires that the photocopies be legible. The rule permits inclusion not only of documents from the record but also copies of a printed judicial or agency decision. If a decision that is part of the record in the case has been published, it is helpful to provide a copy of the published decision in place of a copy of the decision from the record. Subdivision (c). The old rule required a petition for rehearing to be produced in the same manner as a brief or appendix. The new rule also requires that a petition for rehearing en banc and a response to either a petition for panel rehearing or a petition for rehearing en banc be prepared in the same manner. But the length limitations of paragraph (a)(7) do not apply to those documents and a cover is not required if all the information needed by the court to properly identify the document and the parties is included in the caption or signature page. Existing subdivision (b) states that other papers may be produced in like manner, or they may be typewritten upon opaque, unglazed paper 812 by 11 inches in size. The quoted language is deleted but that method of preparing documents is not eliminated because (a)(5)(B) permits use of standard pica type. The only change is that the new rule now specifies margins for typewritten documents. Subdivision (d). A brief that complies with the national rule should be acceptable in every court. Local rules may move in one direction only; they may authorize noncompliance with certain of the national norms. For example, a court that wishes to do so may authorize printing of briefs on both sides of the paper, or the use of smaller type size or sans-serif proportional type. A local rule may not, however, impose requirements that are not in the national rule. Committee Notes on Rules2002 Amendment Subdivision (a)(2). See, e.g. Changes Made After Publication and Comments. Subdivision (a)(7)(C). Form 6 requests not only the information mandated by Rule 32(a)(7)(C), but also information that will assist courts in enforcing the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6). Parties and attorneys are not required to use Form 6, but they are encouraged to do so. Subdivision (c)(2)(A). See, e.g. These conflicting local rules create a hardship for counsel who practice in more than one circuit. For that reason, Rule 32(c)(2)(A) has been amended to provide that if a party chooses to use a cover on a paper that is not required to have one, that cover must be white. The amendment is intended to preempt all local rulemaking on the subject of cover colors and thereby promote uniformity in federal appellate practice. Changes Made After Publication and Comments. Subdivisions (d) and (e). By requiring a signature, subdivision (d) ensures that a readily identifiable attorney or party takes responsibility for every paper. The courts of appeals already have authority to sanction attorneys and parties who file papers that contain misleading or frivolous assertions, see, e.g. Changes Made After Publication and Comments. Committee Notes on Rules2005 Amendment Subdivision (a)(7)(C). Committee Notes on Rules2016 Amendment When Rule 32(a)(7)(B)s type-volume limits for briefs were adopted in 1998, the word limits were based on an estimate of 280 words per page. In the course of adopting word limits for the length limits in Rules 5, 21, 27, 35, and 40, and responding to concern about the length of briefs, the Committee has reevaluated the conversion ratio (from pages to words) and decided to apply a conversion ratio of 260 words per page. Rules 28.1 and 32(a)(7)(B) are amended to reduce the word limits accordingly. In a complex case, a party may need to file a brief that exceeds the type-volume limitations specified in these rules, such as to include unusually voluminous information explaining relevant background or legal provisions or to respond to multiple briefs by opposing parties or amici. The Committee expects that courts will accommodate those situations by granting leave to exceed the type-volume limitations as appropriate. Subdivision (e) is amended to make clear a courts ability (by local rule or order in a case) to increase the length limits for briefs and other documents. Subdivision (e) already established this authority as to the length limits in Rule 32(a)(7); the amendment makes clear that this authority extends to all length limits in the Appellate Rules. A new subdivision (f) is added to set out a global list of items excluded from length computations, and the list of exclusions in former subdivision (a)(7)(B)(iii) is deleted. The certificate-of-compliance provision formerly in Rule 32(a)(7)(C) is relocated to a new Rule 32(g) and now applies to filings under all type-volume limits (other than Rule 28(j)s word limit)including the new word limits in Rules 5, 21, 27, 29, 35, and 40. Conforming amendments are made to Form 6. Committee Notes on Rules2019 Amendment The phrase corporate disclosure statement is changed to disclosure statement to reflect the revision of Rule 26.1. The other amendment to subdivision (f) does not change the substance of the current rule, but removes the articles before each item because a document will not always include these items. Rule 32.1. Citing Judicial Dispositions (a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as unpublished, not for publication, non-precedential, not precedent, or the like; and (ii) issued on or after January 1, 2007 (b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited. (As added Apr. 12, 2006 Dec. 1, 2006  Committee Notes on Rules2006 Rule 32.1 is a new rule addressing the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated by a federal court as unpublished, not for publication, non-precedential, not precedent, or the like. This Committee Note will refer to these dispositions collectively asunpublished opinions. Rule 32.1 is extremely limited. It does not require any court to issue an unpublished opinion or forbid any court from doing so. It does not dictate the circumstances under which a court may choose to designate an opinion as unpublished or specify the procedure that a court must follow in making that determination. It says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court. Rule 32.1 addresses only the citation designated Subdivision (a). Rule 32.1(a) is intended to replace these inconsistent standards with one uniform rule. Under Rule 32.1(a), a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or for any other reason. In addition, under Rule 32.1(a), a court may not place any restriction on the citation of such opinions. For example, a court may not instruct parties that the citation of unpublished opinions is discouraged, nor may a court forbid parties to cite unpublished opinions when a published opinion addresses the same issue. Rule 32.1(a) applies only to unpublished opinions issued on or after January 1, 2007 January 1, 2007 Subdivision (b). Changes Made After Publication and Comment. May 14, 2004 First, the Committee decided to add federal before judicial opinions in subdivision (a) and before judicial opinion in subdivision (b) to make clear that Rule 32.1 applies only to the unpublished opinions of federal courts. Conforming changes were made to the Committee Note. These changes address the concern of some state court judgesconveyed by Chief Justice Wells at the June 2004 Standing Committee meetingthat Rule 32.1 might have an impact on state law. Second, the Committee decided to insert into the Committee Note references to the studies conducted by the Federal Judicial Center (FJC) and the Administrative Office (AO). (The studies are described below. [Omitted]) These references make clear that the arguments of Rule 32.1s opponents were taken seriously and studied carefully, but ultimately rejected because they were unsupported by or, in some instances, actually refuted by the best available empirical evidence. Rule 33. Appeal Conferences  The court may direct the attorneysand, when appropriate, the partiesto participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement. (As amended Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 The uniform rule for review or enforcement of orders of administrative agencies, boards, commissions or officers (see the general note following Rule 15) authorizes a prehearing conference in agency review proceedings. The same considerations which make a prehearing conference desirable in such proceedings may be present in certain cases on appeal from the district courts. The proposed rule is based upon subdivision 11 of the present uniform rule for review of agency orders. Notes of Advisory Committee on Rules1994 Amendment Rule 33 has been entirely rewritten. The new rule makes several changes. The caption of the rule has been changed from Prehearing Conference to Appeal Conferences to reflect the fact that occasionally a conference is held after oral argument. The rule permits the court to require the parties to attend the conference in appropriate cases. The Committee does not contemplate that attendance of the parties will become routine, but in certain instances the parties presence can be useful. The language of the rule is broad enough to allow a court to determine that an executive or employee (other than the general counsel) of a corporation or government agency with authority regarding the matter at issue, constitutes the party. The rule includes the possibility of settlement among the possible conference topics. The rule recognizes that conferences are often held by telephone. The rule allows a judge or other person designated by the court to preside over a conference. A number of local rules permit persons other than judges to preside over conferences. 1st Cir. R. 47.5; 6th Cir. R. 18; 8th Cir. R. 33A; 9th Cir. R. 331; and 10th Cir. R. 33. The rule requires an attorney to consult with his or her client before a settlement conference and obtain as much authority as feasible to settle the case. An attorney can never settle a case without his or her clients consent. Certain entities, especially government entities, have particular difficulty obtaining authority to settle a case. The rule requires counsel to obtain only as much authority as feasible. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 34. Oral Argument (a) In General. (1)  Partys Statement. (2)  Standards. (A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; or (C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. (b) Notice of Argument; Postponement. The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date. (c) Order and Contents of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities. (d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument. (e) Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellants argument. If the appellant fails to appear for argument, the court may hear the appellees argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise. (f) Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued. (g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them. (As amended Apr. 1, 1979 Aug. 1, 1979 Mar. 10, 1986 July 1, 1986 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 24, 1998 Dec. 1, 1998 Apr. 25, 2005 Dec. 1, 2005  Notes of Advisory Committee on Rules1967 A majority of circuits now limit oral argument to thirty minutes for each side, with the provision that additional time may be made available upon request. The Committee is of the view that thirty minutes to each side is sufficient in most cases, but that where additional time is necessary it should be freely granted on a proper showing of cause therefor. It further feels that the matter of time should be left ultimately to each court of appeals, subject to the spirit of the rule that a reasonable time should be allowed for argument. The term side is used to indicate that the time allowed by the rule is afforded to opposing interests rather than to individual parties. Thus if multiple appellants or appellees have a common interest, they constitute only a single side. If counsel for multiple parties who constitute a single side feel that additional time is necessary, they may request it. In other particulars this rule follows the usual practice among the circuits. See 3d Cir. Rule 31; 6th Cir. Rule 20; 10th Cir. Rule 23. Notes of Advisory Committee on Rules1979 Amendment The proposed amendment, patterned after the recommendations in the Report of the Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change, 1975, created by Public Law 489 of the 92nd Cong. 2nd Sess., 86 Stat. 807 Notes of Advisory Committee on Rules1986 Amendment The amendments to Rules 34(a) and (e) are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment Subdivision (d) Notes of Advisory Committee on Rules1993 Amendment Subdivision (c) Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Substantive changes are made in subdivision (a). Subdivision (a). Paragraph (a)(2) states that one reason for deciding that oral argument is unnecessary is that the dispositive issue has been authoritatively decided. The amended language no longer states that the issue must have been recently decided. The Advisory Committee does not intend any substantive change, but thinks that the use of recently may be misleading. Subdivision (d). Committee Notes on Rules2005 Amendment Subdivision (d). Rule 35. En Banc Determination (a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the courts decisions; or (2) the proceeding involves a question of exceptional importance. (b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc. (1) The petition must begin with a statement that either: (A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the courts decisions; or (B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue. (2) Except by the courts permission: (A) a petition for an en banc hearing or rehearing produced using a computer must not exceed 3,900 words; and (B) a handwritten or typewritten petition for an en banc hearing or rehearing must not exceed 15 pages. (3) For purposes of the limits in Rule 35(b)(2), if a party files both a petition for panel rehearing and a petition for rehearing en banc, they are considered a single document even if they are filed separately, unless separate filing is required by local rule. (c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellees brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing. (d) Number of Copies. The number of copies to be filed must be prescribed by local rule and may be altered by order in a particular case. (e) Response. No response may be filed to a petition for an en banc consideration unless the court orders a response. The length limits in Rule 35(b)(2) apply to a response. (f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote. (As amended Apr. 1, 1979 Aug. 1, 1979 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 25, 2005 Dec. 1, 2005 Apr. 28, 2016 Dec. 1, 2016 Apr. 27, 2020 Dec. 1, 2020  Notes of Advisory Committee on Rules1967 Statutory authority for in banc hearings is found in 28 U.S.C.  46(c). The proposed rule is responsive to the Supreme Courts view in Western Pacific Ry. Corp. v. Western Pacific Ry. Co sua sponte. The provision that a vote will not be taken as a result of the suggestion of the party unless requested by a judge of the court in regular active service or by a judge who was a member of the panel that rendered a decision sought to be reheard is intended to make it clear that a suggestion of a party as such does not require any action by the court. See Western Pacific Ry. Corp. v. Western Pacific Ry. Co In practice, the suggestion of a party that a case be reheard in banc is frequently contained in a petition for rehearing, commonly styled petition for rehearing in banc. Such a petition is in fact merely a petition for a rehearing, with a suggestion that the case be reheard in banc. Since no response to the suggestion, as distinguished from the petition for rehearing, is required, the panel which heard the case may quite properly dispose of the petition without reference to the suggestion. In such a case the fact that no response has been made to the suggestion does not affect the finality of the judgment or the issuance of the mandate, and the final sentence of the rule expressly so provides. Notes of Advisory Committee on Rules1979 Amendment Under the present rule there is no specific provision for a response to a suggestion that an appeal be heard in banc. This has led to some uncertainty as to whether such a response may be filed. The proposed amendment would resolve this uncertainty. While the present rule provides a time limit for suggestions for rehearing in banc, it does not deal with the timing of a request that the appeal be heard in banc initially. The proposed amendment fills this gap as well, providing that the suggestion must be made by the date of which the appellees brief is filed. Provision is made for circulating the suggestions to members of the panel despite the fact that senior judges on the panel would not be entitled to vote on whether a suggestion will be granted. Notes of Advisory Committee on Rules1994 Amendment Subdivision (d) Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Several substantive changes are made in this rule, however. One of the purposes of the substantive amendments is to treat a request for a rehearing en banc like a petition for panel rehearing so that a request for a rehearing en banc will suspend the finality of the court of appeals judgment and delay the running of the period for filing a petition for writ of certiorari. Companion amendments are made to Rule 41. Subdivision (a). will May Subdivision (b). if a petition for rehearing is timely filed in the lower court by any party, the time to file the petition for a writ of certiorari for all parties . . . runs from the date of the denial of the petition for rehearing or, if the petition for rehearing is granted, the subsequent entry of judgment. The amendments also require each petition for en banc consideration to begin with a statement concisely demonstrating that the case meets the usual criteria for en banc consideration. It is the Committees hope that requiring such a statement will cause the drafter of a petition to focus on the narrow grounds that support en banc consideration and to realize that a petition should not be filed unless the case meets those rigid standards. Intercircuit conflict is cited as one reason for asserting that a proceeding involves a question of exceptional importance. Intercircuit conflicts create problems. When the circuits construe the same federal law differently, parties rights and duties depend upon where a case is litigated. Given the increase in the number of cases decided by the federal courts and the limitation on the number of cases the Supreme Court can hear, conflicts between the circuits may remain unresolved by the Supreme Court for an extended period of time. The existence of an intercircuit conflict often generates additional litigation in the other circuits as well as in the circuits that are already in conflict. Although an en banc proceeding will not necessarily prevent intercircuit conflicts, an en banc proceeding provides a safeguard against unnecessary intercircuit conflicts. Some circuits have had rules or internal operating procedures that recognize a conflict with another circuit as a legitimate basis for granting a rehearing en banc. An intercircuit conflict may present a question of exceptional importance because of the costs that intercircuit conflicts impose on the system as a whole, in addition to the significance of the issues involved. It is not, however, the Committees intent to make the granting of a hearing or rehearing en banc mandatory whenever there is an intercircuit conflict. The amendment states that a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of every other United States Court of Appeals that has addressed the issue. [The Supreme Court revised the proposed amendment to Rule 35(b)(1)(B) by deleting every before other United States Court of Appeals.] That language contemplates two situations in which a rehearing en banc may be appropriate. The first is when a panel decision creates a conflict. A panel decision creates a conflict when it conflicts with the decisions of all other circuits that have considered the issue. If a panel decision simply joins one side of an already existing conflict, a rehearing en banc may not be as important because it cannot avoid the conflict. The second situation that may be a strong candidate for a rehearing en banc is one in which the circuit persists in a conflict created by a pre-existing decision of the same circuit and no other circuits have joined on that side of the conflict. The amendment states that the conflict must be with an authoritative decision of another circuit. Authoritative is used rather than published because in some circuits unpublished opinions may be treated as authoritative. Counsel are reminded that their duty is fully discharged without filing a petition for rehearing en banc unless the case meets the rigid standards of subdivision (a) of this rule and even then the granting of a petition is entirely within the courts discretion. Paragraph (2) of this subdivision establishes a maximum length for a petition. Fifteen pages is the length currently used in several circuits. Each request for en banc consideration must be studied by every active judge of the court and is a serious call on limited judicial resources. The extraordinary nature of the issue or the threat to uniformity of the courts decision can be established in most cases in less than fifteen pages. A court may shorten the maximum length on a case by case basis but the rule does not permit a circuit to shorten the length by local rule. The Committee has retained page limits rather than using word or line counts similar to those in amended Rule 32 because there has not been a serious enough problem to justify importing the word and line-count and typeface requirements that are applicable to briefs into other contexts. Paragraph (3), although similar to (2), is separate because it deals with those instances in which a party files both a petition for rehearing en banc under this rule and a petition for panel rehearing under Rule 40. To improve the clarity of the rule, the material dealing with filing a response to a petition and with voting on a petition have been moved to new subdivisions (e) and (f). Subdivision (c). Subdivision (e). Subdivision (f). Because of the discretionary nature of the en banc procedure, the filing of a suggestion for rehearing en banc has not required a vote; a vote is taken only when requested by a judge. It is not the Committees intent to change the discretionary nature of the procedure or to require a vote on a petition for rehearing en banc. The rule continues, therefore, to provide that a court is not obligated to vote on such petitions. It is necessary, however, that each court develop a procedure for disposing of such petitions because they will suspend the finality of the courts judgment and toll the time for filing a petition for certiorari. Former subdivision (b) contained language directing the clerk to distribute a suggestion to certain judges and indicating which judges may call for a vote. New subdivision (f) does not address those issues because they deal with internal court procedures. Committee Notes on Rules2005 Amendment Subdivision (a). The Supreme Court has never addressed this issue. In Shenker v. Baltimore & Ohio R.R. Co. en banc Id. Shenker Shenker means Id. Western Pac. R.R. Corp. v. Western Pac. R.R. Co. Shenker Shenker In interpreting that phrase, 7 of the courts of appeals follow the absolute majority approach. See Six of the courts of appeals follow the case majority approach. Id. Rule 35(a) has been amended to adopt the case majority approach as a uniform national interpretation of  46(c). The federal rules of practice and procedure exist to maintain consistency, which Congress has equated with promot[ing] the interest of justice. 28 U.S.C.  2073(b). The courts of appeals should not follow two inconsistent approaches in deciding whether sufficient votes exist to hear a case en banc, especially when there is a governing statute and governing rule that apply to all circuits and that use identical terms, and especially when there is nothing about the local conditions of each circuit that justifies conflicting approaches. The case majority approach represents the better interpretation of the phrase the circuit judges . . . in regular active service in the first sentence of  46(c). The second sentence of  46(c)which defines which judges are eligible to participate in a case being heard or reheard en bancuses the similar expression all circuit judges in regular active service. It is clear that all circuit judges in regular active service in the second sentence does not include disqualified judges, as disqualified judges clearly cannot participate in a case being heard or reheard en banc. Therefore, assuming that two nearly identical phrases appearing in adjacent sentences in a statute should be interpreted in the same way, the best reading of the circuit judges . . . in regular active service in the first sentence of  46(c) is that it, too, does not include disqualified judges. This interpretation of  46(c) is bolstered by the fact that the case majority approach has at least two major advantages over the absolute majority approach: First, under the absolute majority approach, a disqualified judge is, as a practical matter, counted as voting against hearing a case en banc. This defeats the purpose of recusal. To the extent possible, the disqualification of a judge should not result in the equivalent of a vote for or against hearing a case en banc. Second, the absolute majority approach can leave the en banc court helpless to overturn a panel decision with which almost all of the circuits active judges disagree. For example, in a case in which 5 of a circuits 12 active judges are disqualified, the case cannot be heard en banc even if 6 of the 7 non-disqualified judges strongly disagree with the panel opinion. This permits one active judgeperhaps sitting on a panel with a visiting judgeeffectively to control circuit precedent, even over the objection of all of his or her colleagues. See Gulf Power Co. v. FCC revd sub nom. National Cable & Telecomm. Assn, Inc. v. Gulf Power Co. The amendment to Rule 35(a) is not meant to alter or affect the quorum requirement of 28 U.S.C.  46(d). In particular, the amendment is not intended to foreclose the possibility that  46(d) might be read to require that more than half of all circuit judges in regular active service be eligible to participate in order for the court to hear or rehear a case en banc. Changes Made After Publication and Comments. Committee Notes on Rules2016 Amendment The page limits previously employed in Rules 5, 21, 27, 35, and 40 have been largely overtaken by changes in technology. For papers produced using a computer, those page limits are now replaced by word limits. The word limits were derived from the current page limits using the assumption that one page is equivalent to 260 words. Papers produced using a computer must include the certificate of compliance required by Rule 32(g); Form 6 in the Appendix of Forms suffices to meet that requirement. Page limits are retained for papers prepared without the aid of a computer (i.e., handwritten or typewritten papers). For both the word limit and the page limit, the calculation excludes any items listed in Rule 32(f). Committee Notes on Rules2020 Amendment The amendment to Rule 35(e) clarifies that the length limits applicable to a petition for hearing or rehearing en banc also apply to a response to such a petition, if the court orders one. Rule 36. Entry of Judgment; Notice (a) Entry. A judgment is entered when it is noted on the docket. The clerk must prepare, sign, and enter the judgment: (1) after receiving the courts opinionbut if settlement of the judgments form is required, after final settlement; or (2) if a judgment is rendered without an opinion, as the court instructs. (b) Notice. On the date when judgment is entered, the clerk must serve on all parties a copy of the opinionor the judgment, if no opinion was writtenand a notice of the date when the judgment was entered. (As amended Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1967 This is the typical rule. See 1st Cir. Rule 29; 3rd Cir. Rule 32; 6th Cir. Rule 21. At present, uncertainty exists as to the date of entry of judgment when the opinion directs subsequent settlement of the precise terms of the judgment, a common practice in cases involving enforcement of agency orders. See Stern and Gressman, Supreme Court Practice, p. 203 (3d Ed., 1962). The principle of finality suggests that in such cases entry of judgment should be delayed until approval of the judgment in final form. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2002 Amendment Subdivision (b). Changes Made After Publication and Comments. Rule 37. Interest on Judgment (a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district courts judgment was entered. (b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest. (As amended Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 The first sentence makes it clear that if a money judgment is affirmed in the court of appeals, the interest which attaches to money judgments by force of law (see 28 U.S.C.  1961 and  2411) upon their initial entry is payable as if no appeal had been taken, whether or not the mandate makes mention of interest. There has been some confusion on this point. See Blair v. Durham In reversing or modifying the judgment of the district court, the court of appeals may direct the entry of a money judgment, as, for example, when the court of appeals reverses a judgment notwithstanding the verdict and directs entry of judgment on the verdict. In such a case the question may arise as to whether interest is to run from the date of entry of the judgment directed by the court of appeals or from the date on which the judgment would have been entered in the district court except for the erroneous ruling corrected on appeal. In Briggs v. Pennsylvania R. Co Briggs Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 38. Frivolous AppealDamages and Costs  If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee. (As amended Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 Compare 28 U.S.C.  1912. While both the statute and the usual rule on the subject by courts of appeals (Fourth Circuit Rule 20 is a typical rule) speak of damages for delay, the courts of appeals quite properly allow damages, attorneys fees and other expenses incurred by an appellee if the appeal is frivolous without requiring a showing that the appeal resulted in delay. See Dunscombe v. Sayle cert. den Lowe v. Willacy Griffith Wellpoint Corp. v. Munro-Langstroth, Inc Ginsburg v. Stern Notes of Advisory Committee on Rules1994 Amendment The amendment requires that before a court of appeals may impose sanctions, the person to be sanctioned must have notice and an opportunity to respond. The amendment reflects the basic principle enunciated in the Supreme Courts opinion in Roadway Express, Inc. v. Piper Committee Notes on Rules1998 Amendment Only the caption of this rule has been amended. The changes are intended to be stylistic only. Rule 39. Costs (a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise: (1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise; (2) if a judgment is affirmed, costs are taxed against the appellant; (3) if a judgment is reversed, costs are taxed against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders. (b) Costs For and Against the United States. Costs for or against the United States, its agency, or officer will be assessed under Rule 39(a) only if authorized by law. (c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerks office is located and should encourage economical methods of copying. (d) Bill of Costs: Objections; Insertion in Mandate. (1) A party who wants costs taxed mustwithin 14 days after entry of judgmentfile with the circuit clerk and serve an itemized and verified bill of costs. (2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time. (3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk mustupon the circuit clerks requestadd the statement of costs, or any amendment of it, to the mandate. (e) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule: (1) the preparation and transmission of the record; (2) the reporters transcript, if needed to determine the appeal; (3) premiums paid for a bond or other security to preserve rights pending appeal; and (4) the fee for filing the notice of appeal. (As amended Apr. 30, 1979 Aug. 1, 1979 Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998 Mar. 26, 2009 Dec. 1, 2009 Apr. 26, 2018 Dec. 1, 2018 Apr. 25, 2019 Dec. 1, 2019  Notes on Advisory Committee on Rules1967 Subdivision (a) Subdivision (b) The number of cases affected by such rules has been greatly reduced by the Act of July 18, 1966 80 Stat. 308 July 18, 1966 supra Subdivision (c) June 2, 1967 Subdivision (e) Perlman v. Feldmann Firtag v. Gendleman Todd Atlantic Shipyards Corps. v. The Southport Berner v. British Commonwealth Pacific Air Lines, Ltd Land Oberoesterreich v. Gude In re Northern Ind. Oil Co Lunn v. F. W. Woolworth Notes of Advisory Committee on Rules1979 Amendment Subdivision (c) Subdivision (d) Notes of Advisory Committee on Rules1986 Amendment The amendment to subdivision (c) is intended to increase the degree of control exercised by the courts of appeals over rates for printing and copying recoverable as costs. It further requires the courts of appeals to encourage cost-consciousness by requiring that, in fixing the rate, the court consider the most economical methods of printing and copying. The amendment to subdivision (d) is technical. No substantive change is intended. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. All references to the cost of printing have been deleted from subdivision (c) because commercial printing is so rarely used for preparation of documents filed with a court of appeals. Committee Notes on Rules2009 Amendment Subdivision (d)(2). Committee Notes on Rules2018 Amendment The amendment of subdivision (e)(3) conforms this rule with the amendment of Federal Rule of Civil Procedure 62. Rule 62 formerly required a party to provide a supersedeas bond to obtain a stay of the judgment and proceedings to enforce the judgment. As amended, Rule 62(b) allows a party to obtain a stay by providing a bond or other security. Committee Notes on Rules2019 Amendment In subdivision (d)(1) the words with proof of service are deleted and replaced with and serve to conform with amendments to Rule 25(d) regarding when proof of service or acknowledgement of service is required for filed papers. Rule 40. Petition for Panel Rehearing (a) Time to File; Contents; Response; Action by the Court if Granted. (1)  Time. (A) the United States; (B) a United States agency; (C) a United States officer or employee sued in an official capacity; or (D) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States behalfincluding all instances in which the United States represents that person when the court of appeals judgment is entered or files the petition for that person. (2)  Contents. (3)  Response. (4)  Action by the Court. (A) make a final disposition of the case without reargument; (B) restore the case to the calendar for reargument or resubmission; or (C) issue any other appropriate order. (b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must be served and filed as Rule 31 prescribes. Except by the courts permission: (1) a petition for panel rehearing produced using a computer must not exceed 3,900 words; and (2) a handwritten or typewritten petition for panel rehearing must not exceed 15 pages. (As amended Apr. 30, 1979 Aug. 1, 1979 Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 26, 2011 Dec. 1, 2011 Apr. 28, 2016 Dec. 1, 2016 Apr. 27, 2020 Dec. 1, 2020  Notes of Advisory Committee on Rules1967 This is the usual rule among the circuits, except that the express prohibition against filing a reply to the petition is found only in the rules of the Fourth, Sixth and Eighth Circuits (it is also contained in Supreme Court Rule 58(3)). It is included to save time and expense to the party victorious on appeal. In the very rare instances in which a reply is useful, the court will ask for it. Notes of Advisory Committee on Rules1979 Amendment Subdivision (a) Subdivision (b) Notes of Advisory Committee on Rules1994 Amendment Subdivision (a) see Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2011 Amendment Subdivision (a)(1) To promote clarity of application, the amendment to Rule 40(a)(1) includes safe harbor provisions that parties can readily apply and rely upon. Under new subdivision 40(a)(1)(D), a case automatically qualifies for the 45-day period if (1) a legal officer of the United States has appeared in the case, in an official capacity, as counsel for the current or former officer or employee and has not withdrawn the appearance at the time of the entry of the court of appeals judgment that is the subject of the petition or (2) a legal officer of the United States appears on the petition as counsel, in an official capacity, for the current or former officer or employee. There will be cases that do not fall within either safe harbor but that qualify for the longer petition period. An example would be a case in which a federal employee is sued in an individual capacity for an act occurring in connection with federal duties and the United States does not represent the employee either when the court of appeals judgment is entered or when the petition is filed but the United States pays for private counsel for the employee. Changes Made After Publication and Comment First, the Committee inserted the words current or former before United States officer or employee. This insertion causes the text of the proposed Rule to diverge slightly from that of Civil Rules 4(i)(3) and 12(a)(3), which refer simply to a United States officer or employee [etc.]. This divergence, though, is only stylistic. The 2000 Committee Notes to Civil Rules 4(i)(3) and 12(a)(3) make clear that those rules are intended to encompass former as well as current officers or employees. Second, the Committee added, at the end of Rule 40(a)(1)(D), the following new language: including all instances in which the United States represents that person when the court of appeals judgment is entered or files the petition for that person. During the public comment period, concerns were raised that a party might rely on the longer period for filing the petition, only to risk the petition being held untimely by a court that later concluded that the relevant act or omission had not actually occurred in connection with federal duties. The Committee decided to respond to this concern by adding two safe harbor provisions. These provisions make clear that the longer period applies in any ease where the United States either represents the officer or employee at the time of entry of the relevant judgment or files the petition on the officer or employees behalf. Committee Notes on Rules2016 Amendment The page limits previously employed in Rules 5, 21, 27, 35, and 40 have been largely overtaken by changes in technology. For papers produced using a computer, those page limits are now replaced by word limits. The word limits were derived from the current page limits using the assumption that one page is equivalent to 260 words. Papers produced using a computer must include the certificate of compliance required by Rule 32(g); Form 6 in the Appendix of Forms suffices to meet that requirement. Page limits are retained for papers prepared without the aid of a computer (i.e., handwritten or typewritten papers). For both the word limit and the page limit, the calculation excludes any items listed in Rule 32(f). Committee Notes on Rules2020 Amendment The amendment to Rule 40(a)(3) clarifies that the provisions of Rule 40(b) regarding a petition for panel rehearing also apply to a response to such a petition, if the court orders a response. The amendment also changes the language to refer to a response, rather than an answer, to make the terminology consistent with Rule 35; this change is intended to be stylistic only. Rule 41. Mandate: Contents; Issuance and Effective Date; Stay (a) Contents. Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the courts opinion, if any, and any direction about costs. (b) When Issued. The courts mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time by order. (c) Effective Date. The mandate is effective when issued. (d) Staying the Mandate Pending a Petition for Certiorari. (1)  Motion to Stay. (2)  Duration of Stay; Extensions. (A) the period is extended for good cause; or (B) the party who obtained the stay notifies the circuit clerk in writing within the period of the stay: (i) that the time for filing a petition has been extended, in which case the stay continues for the extended period; or (ii) that the petition has been filed, in which case the stay continues until the Supreme Courts final disposition. (3)  Security. (4)  Issuance of Mandate. (As amended Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Mar. 26, 2009 Dec. 1, 2009 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1967 The proposed rule follows the rule or practice in a majority of circuits by which copies of the opinion and the judgment serve in lieu of a formal mandate in the ordinary case. Compare Supreme Court Rule 59. Although 28 U.S.C.  2101(c) permits a writ of certiorari to be filed within 90 days after entry of judgment, seven of the eight circuits which now regulate the matter of stays pending application for certiorari limit the initial stay of the mandate to the 30-day period provided in the proposed rule. Compare D.C. Cir. Rule 27(e). Notes of Advisory Committee on Rules1994 Amendment Subdivision (a) Subdivision (b) The amendment also states that the motion must show that a petition for certiorari would present a substantial question and that there is good cause for a stay. The amendment is intended to alert the parties to the fact that a stay of mandate is not granted automatically and to the type of showing that needs to be made. The Supreme Court has established conditions that must be met before it will stay a mandate. See Supreme Court Practice Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Several substantive changes are made in this rule, however. Subdivision (b). Subdivision (c). Subdivision (d). Paragraph (1) also provides that the filing of a motion for a stay of mandate pending petition to the Supreme Court for a writ of certiorari stays the mandate until the court disposes of the motion. If the court denies the motion, the court must issue the mandate 7 days after entering the order denying the motion. If the court grants the motion, the mandate is stayed according to the terms of the order granting the stay. Delaying issuance of the mandate eliminates the need to recall the mandate if the motion for a stay is granted. If, however, the court believes that it would be inappropriate to delay issuance of the mandate until disposition of the motion for a stay, the court may order that the mandate issue immediately. Paragraph (2). The amendment changes the maximum period for a stay of mandate, absent the court of appeals granting an extension for cause, to 90 days. The presumptive 30-day period was adopted when a party had to file a petition for a writ of certiorari in criminal cases within 30 days after entry of judgment. Supreme Court Rule 13.1 now provides that a party has 90 days after entry of judgment by a court of appeals to file a petition for a writ of certiorari whether the case is civil or criminal. The amendment does not require a court of appeals to grant a stay of mandate that is coextensive with the period granted for filing a petition for a writ of certiorari. The granting of a stay and the length of the stay remain within the discretion of the court of appeals. The amendment means only that a 90-day stay may be granted without a need to show cause for a stay longer than 30 days. Subparagraph (C) is not new; it has been moved from the end of the rule to this position. Committee Notes on Rules2002 Amendment Subdivision (b). Fed. R. App. P. 26(a)(2) has been amended to provide that, in computing any period of time, one should [e]xclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days, unless stated in calendar days. This change in the method of computing deadlines means that 7-day deadlines (such as that in subdivision (b)) have been lengthened as a practical matter. Under the new computation method, a mandate would never issue sooner than 9 actual days after a triggering event, and legal holidays could extend that period to as much as 13 days. Delaying mandates for 9 or more days would introduce significant and unwarranted delay into appellate proceedings. For that reason, subdivision (b) has been amended to require that mandates issue 7 calendar Changes Made After Publication and Comments. Committee Notes on Rules2009 Amendment Under former Rule 26(a), short periods that span weekends or holidays were computed without counting those weekends or holidays. To specify that a period should be calculated by counting all intermediate days, including weekends or holidays, the Rules used the term calendar days. Rule 26(a) now takes a days-are-days approach under which all intermediate days are counted, no matter how short the period. Accordingly, 7 calendar days in subdivision (b) is amended to read simply 7 days. Changes Made After Publication and Comment. The Appellate Rules Committee made one change to its proposed amendments concerning Appellate Rules deadlines. Based on comments received with respect to the timing for motions that toll the time for taking a civil appeal, the Committee changed the cutoff time in Rule 4(a)(4)(A)(vi) to 28 days (rather than to 30 days as in the published proposal). The published proposals choice of 30 days had been designed to accord with the proposed amendments published by the Civil Rules Committee, which would have extended the deadline for tolling motions to 30 days. Because 30 days is also the time period set by Appellate Rule 4 and by 28 U.S.C.  2107 for taking a civil appeal (when the United States and its officers or agencies are not parties), commentators pointed out that adopting 30 days as the cutoff for filing tolling motions would sometimes place would-be appellants in an awkward position: If the deadline for making a tolling motion falls on the same day as the deadline for filing a notice of appeal, then in a case involving multiple parties on one side, a litigant who wishes to appeal may not know, when filing the notice of appeal, whether a tolling motion will be filed; such a timing system can be expected to produce instances when appeals are filed, only to go into abeyance while the tolling motion is resolved. By the time of the Appellate Rules Committees April 2008 meeting, the Civil Rules Committee had discussed this issue and had determined that the best resolution would be to extend the deadline for tolling motions to 28 days rather than 30 days. The choice of a 28-day deadline responds to the concerns of those who feel that the current 10-day deadlines are much too short, but also takes into account the problem of the 30-day appeal deadline. As described in the draft minutes of the Committees April meeting, Committee members carefully discussed the relevant concerns and determined, by a vote of 7 to 1, to assent to the 28-day time period for tolling motions and to change the cutoff time in Rule 4(a)(4)(A)(vi) to 28 days. The Standing Committee changed Rule 26(a)(6) to exclude state holidays from the definition of legal holiday for purposes of computing backward-counted periods; conforming changes were made to the Committee Note. Committee Notes on Rules2018 Amendment Subdivision (b). Before 1998, the rule referred to a courts ability to shorten or enlarge the time for the mandates issuance by order. The phrase by order was deleted as part of the 1998 restyling of the rule. Though the change appears to have been intended as merely stylistic, it has caused uncertainty concerning whether a court of appeals can stay its mandate through mere inaction or whether such a stay requires an order. There are good reasons to require an affirmative act by the court. Litigantsparticularly those not well versed in appellate proceduremay overlook the need to check that the court of appeals has issued its mandate in due course after handing down a decision. And, in Bell v. Thompson Subdivision (d). Subdivision (d)(1)which formerly addressed stays of the mandate upon the timely filing of a motion to stay the mandate or a petition for panel or en banc rehearinghas been deleted and the rest of subdivision (d) has been renumbered and renamed accordingly. In instances where such a petition or motion is timely filed, subdivision (b) sets the presumptive date for issuance of the mandate at 7 days after entry of an order denying the petition or motion. Thus, it seems redundant to state (as subdivision (d)(1) did) that timely filing of such a petition or motion stays the mandate until disposition of the petition or motion. The deletion of subdivision (d)(1) is intended to streamline the rule; no substantive change is intended. Under the new subdivision (d)(2)(B), if the court of appeals issues a stay of the mandate for a party to file a petition for certiorari, and a Justice of the Supreme Court subsequently extends the time for filing the petition, the stay automatically continues for the extended period. Subdivision (d)(4)i.e., former subdivision (d)(2)(D)is amended to specify that a mandate stayed pending a petition for certiorari must issue immediately once the court of appeals receives a copy of the Supreme Courts order denying certiorari, unless the court of appeals finds that extraordinary circumstances justify a further stay. Without deciding whether the prior version of Rule 41 provided authority for a further stay of the mandate after denial of certiorari, the Supreme Court ruled that any such authority could be exercised only in extraordinary circumstances. Ryan v. Schad The reference in prior subdivision (d)(2)(D) to the filing receipt cf Rule 42. Voluntary Dismissal (a) Dismissal in the District Court. Before an appeal has been docketed by the circuit clerk, the district court may dismiss the appeal on the filing of a stipulation signed by all parties or on the appellants motion with notice to all parties. (b) Dismissal in the Court of Appeals. (1)  Stipulated Dismissal. (2)  Appellants Motion to Dismiss. (3)  Other Relief. (c) Court Approval. This Rule 42 does not alter the legal requirements governing court approval of a settlement, payment, or other consideration. (d) Criminal Cases. A court may, by local rule, impose requirements to confirm that a defendant has consented to the dismissal of an appeal in a criminal case. (As amended Apr. 24, 1998 Dec. 1, 1998 Apr. 11, 2022 Dec. 1, 2022  Notes of Advisory Committee on Rules1967 Subdivision (a) Subdivision (b) Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2022 Amendment The amendment restores the requirement, in effect prior to the restyling of the Federal Rules of Appellate Procedure, that the circuit clerk dismiss an appeal if all parties so agree. It also clarifies that the fees that must be paid are court fees, not attorneys fees. The rule does not alter the legal requirements governing court approval of a settlement, payment, or other consideration. See, e.g. The amendment replaces old terminology and clarifies that any relief beyond dismissal of an appealincluding approving a settlement, vacating, or remandingrequires a court order. Pursuant to Rule 20, Rule 42(b) applies to petitions for review and applications to enforce an agency order. For Rule 42(b) to function in such cases, appeal should be understood to include a petition for review or application to enforce an agency order. The amendment permits local rules that impose requirements to confirm that a defendant has consented to the dismissal of an appeal in a criminal case. Rule 43. Substitution of Parties (a) Death of a Party. (1)  After Notice of Appeal Is Filed. (2)  Before Notice of Appeal Is FiledPotential Appellant. (3)  Before Notice of Appeal Is FiledPotential Appellee. (b) Substitution for a Reason Other Than Death. If a party needs to be substituted for any reason other than death, the procedure prescribed in Rule 43(a) applies. (c) Public Officer: Identification; Substitution. (1)  Identification of Party. (2)  Automatic Substitution of Officeholder. (As amended Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 Subdivision (a) The sixth sentence authorizes an attorney of record for the deceased to take an appeal on behalf of successors in interest if the deceased has no representative. At present, if a party entitled to appeal dies before the notice of appeal is filed, the appeal can presumably be taken only by his legal representative and must be taken within the time ordinarily prescribed. 13 Cyclopedia of Federal Procedure (3d Ed.)  63.21. The states commonly make special provisions for the event of the death of a party entitled to appeal, usually by extending the time otherwise prescribed. Rules of Civil Procedure for Superior Courts of Arizona, Rule 73(t), 16 A.R.S.; New Jersey Rev. Rules 1:33; New York Civil Practice Law and Rules, Sec. 1022; Wisconsin Statutes Ann. 274.01(2). The provision in the proposed rule is derived from California Code of Civil Procedure, Sec. 941. Subdivision (c) Notes of Advisory Committee on Rules1986 Amendment The amendments to Rules 43(a) and (c) are technical. No substantive change is intended. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 44. Case Involving a Constitutional Question When the United States or the Relevant State is Not a Party (a) Constitutional Challenge to Federal Statute. If a party questions the constitutionality of an Act of Congress in a proceeding in which the United States or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the Attorney General. (b) Constitutional Challenge to State Statute. If a party questions the constitutionality of a statute of a State in a proceeding in which that State or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the attorney general of the State. (As amended Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002  Notes of Advisory Committee on Rules1967 This rule is now found in the rules of a majority of the circuits. It is in response to the Act of August 24, 1937 Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2002 Amendment Rule 44 requires that a party who questions the constitutionality of an Act of Congress in a proceeding in which the United States is not a party must provide written notice of that challenge to the clerk. Rule 44 is designed to implement 28 U.S.C.  2403(a), which states that: In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene . . . for argument on the question of constitutionality. The subsequent section of the statute 2403(b)contains virtually identical language imposing upon the courts the duty to notify the attorney general of a state of a constitutional challenge to any statute of that state. But  2403(b), unlike  2403(a), was not implemented in Rule 44. Rule 44 has been amended to correct this omission. The text of former Rule 44 regarding constitutional challenges to federal statutes now appears as Rule 44(a), while new language regarding constitutional challenges to state statutes now appears as Rule 44(b). Changes Made After Publication and Comments. Rule 45. Clerks Duties (a) General Provisions. (1)  Qualifications. (2)  When Court Is Open. (b) Records. (1)  The Docket. (2)  Calendar. (3)  Other Records. (c) Notice of an Order or Judgment. Upon the entry of an order or judgment, the circuit clerk must immediately serve a notice of entry on each party, with a copy of any opinion, and must note the date of service on the docket. Service on a party represented by counsel must be made on counsel. (d) Custody of Records and Papers. The circuit clerk has custody of the courts records and papers. Unless the court orders or instructs otherwise, the clerk must not permit an original record or paper to be taken from the clerks office. Upon disposition of the case, original papers constituting the record on appeal or review must be returned to the court or agency from which they were received. The clerk must preserve a copy of any brief, appendix, or other paper that has been filed. (As amended Mar. 1, 1971 July 1, 1971 Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1967 The duties imposed upon clerks of the courts of appeals by this rule are those imposed by rule or practice in a majority of the circuits. The second sentence of subdivision (a) authorizing the closing of the clerks office on Saturday and non-national legal holidays follows a similar provision respecting the district court clerks office found in FRCP 77(c) and in FRCrP 56. Notes of Advisory Committee on Rules1971 Amendment The amendment adds Columbus Day to the list of legal holidays. See the Note accompanying the amendment of Rule 26(a). Notes of Advisory Committee on Rules1986 Amendment The amendment to Rule 45(b) permits the courts of appeals to maintain computerized dockets. The Committee believes that the Administrative Office of the United States Courts ought to have maximum flexibility in prescribing the format of this docket in order to ensure a smooth transition from manual to automated systems and subsequent adaptation to technological improvements. The amendments to Rules 45(a) and (d) are technical. No substantive change is intended. The Birthday of Martin Luther King, Jr. has been added to the list of national holidays. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Committee Notes on Rules2002 Amendment Subdivision (c). Changes Made After Publication and Comments. Committee Notes on Rules2005 Amendment Subdivision (a)(2). See Changes Made After Publication and Comments. Committee Notes on Rules2023 Amendment The amendment adds Juneteenth National Independence Day to the list of legal holidays. See Juneteenth National Independence Day Act, P.L. 11717 Rule 46. Attorneys (a) Admission to the Bar. (1)  Eligibility. (2)  Application. I, ____________, do solemnly swear [or affirm] that I will conduct myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States. (3)  Admission Procedures. (b) Suspension or Disbarment. (1)  Standard. (A) has been suspended or disbarred from practice in any other court; or (B) is guilty of conduct unbecoming a member of the courts bar. (2)  Procedure. (3)  Order. (c) Discipline. A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule. First, however, the court must afford the attorney reasonable notice, an opportunity to show cause to the contrary, and, if requested, a hearing. (As amended Mar. 10, 1986 July 1, 1986 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 Subdivision (a) A few circuits now require that application for admission be made by oral motion by a sponsor member in open court. The proposed rule permits both the application and the motion by the sponsor member to be in writing, and permits action on the motion without the appearance of the applicant or the sponsor, unless the court otherwise orders. Subdivision (b) Subdivision (c) Notes of Advisory Committee on Rules1986 Amendment The amendments to Rules 46(a) and (b) are technical. No substantive change is intended. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 47. Local Rules by Courts of Appeals (a) Local Rules. (1) Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice. A generally applicable direction to parties or lawyers regarding practice before a court must be in a local rule rather than an internal operating procedure or standing order. A local rule must be consistent withbut not duplicative ofActs of Congress and rules adopted under 28 U.S.C.  2072 and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. Each circuit clerk must send the Administrative Office of the United States Courts a copy of each local rule and internal operating procedure when it is promulgated or amended. (2) A local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement. (b) Procedure When There Is No Controlling Law. A court of appeals may regulate practice in a particular case in any manner consistent with federal law, these rules, and local rules of the circuit. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local circuit rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement. (As amended Apr. 27, 1995 Dec. 1, 1995 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1967 This rule continues the authority now vested in individual courts of appeals by 28 U.S.C.  2071 to make rules consistent with rules of practice and procedure promulgated by the Supreme Court. Notes of Advisory Committee on Rules1995 Amendment Subdivision (a) The amendment also requires that the numbering of local rules conform with any uniform numbering system that may be prescribed by the Judicial Conference. Lack of uniform numbering might create unnecessary traps for counsel and litigants. A uniform numbering system would make it easier for an increasingly national bar and for litigants to locate a local rule that applies to a particular procedural issue. Paragraph (2) is new. Its aim is to protect against loss of rights in the enforcement of local rules relating to matters of form. The proscription of paragraph (2) is narrowly drawncovering only violations that are not willful and only those involving local rules directed to matters of form. It does not limit the courts power to impose substantive penalties upon a party if it or its attorney stubbornly or repeatedly violates a local rule, even one involving merely a matter of form. Nor does it affect the courts power to enforce local rules that involve more than mere matters of form. Subdivision (b) The amendment to this rule disapproves imposing any sanction or other disadvantage on a person for noncompliance with such a directive, unless the alleged violator has been furnished in a particular case with actual notice of the requirement. There should be no adverse consequence to a party or attorney for violating special requirements relating to practice before a particular court unless the party or attorney has actual notice of those requirements. Committee Notes on Rules1998 Amendment The language of the rule is amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. Rule 48. Masters (a) Appointment; Powers. A court of appeals may appoint a special master to hold hearings, if necessary, and to recommend factual findings and disposition in matters ancillary to proceedings in the court. Unless the order referring a matter to a master specifies or limits the masters powers, those powers include, but are not limited to, the following: (1) regulating all aspects of a hearing; (2) taking all appropriate action for the efficient performance of the masters duties under the order; (3) requiring the production of evidence on all matters embraced in the reference; and (4) administering oaths and examining witnesses and parties. (b) Compensation. If the master is not a judge or court employee, the court must determine the masters compensation and whether the cost is to be charged to any party. (As amended Apr. 29, 1994 Dec. 1, 1994 Apr. 24, 1998 Dec. 1, 1998  Notes of Advisory Committee on Rules1994 Amendment The text of the existing Rule 48 concerning the title was moved to Rule 1. This new Rule 48 authorizes a court of appeals to appoint a special master to make recommendations concerning ancillary matters. The courts of appeals have long used masters in contempt proceedings where the issue is compliance with an enforcement order. See Polish National Alliance v. NLRB NLRB v. Arcade-Sunshine Co NLRB v. Remington Rand, Inc Ordinarily when a factual issue is unresolved, a court of appeals remands the case to the district court or agency that originally heard the case. It is not the Committees intent to alter that practice. However, when factual issues arise in the first instance in the court of appeals, such as fees for representation on appeal, it would be useful to have authority to refer such determinations to a master for a recommendation. Committee Notes on Rules1998 Amendment The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only. APPENDIX OF FORMS Form 1A . Notice of Appeal to a Court of Appeals From a Judgment of a District Court United States District Court for the ____ District of ______ Docket Number ____ A.B., Plaintiff v. F C.D., Defendant ___(name all parties taking the appeal) * appeal to the United States Court of Appeals for the ___ Circuit from the final judgment entered on _________(state the date the judgment was entered). (s)____________ Attorney for ______ Address: ________ [Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration with this Notice of Appeal. * See Rule 3(c) for permissible ways of identifying appellants. (As added Apr. 14, 2021 Dec. 1, 2021 Form 1B . Notice of Appeal to a Court of Appeals From an Appealable Order of a District Court United States District Court for the ____ District of ______ Docket Number ____ A.B., Plaintiff v. F C.D., Defendant ___(name all parties taking the appeal) * appeal to the United States Court of Appeals for the ___ Circuit from the order ___(describe the order) entered on _________(state the date the order was entered). (s)____________ Attorney for ______ Address: ________ [Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration with this Notice of Appeal. * See Rule 3(c) for permissible ways of identifying appellants. (As added Apr. 14, 2021 Dec. 1, 2021 Form 2 . Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court United States Tax Court Washington, D.C. Docket No. ____ A.B., Petitioner v. Commissioner of W Internal Revenue, Respondent ___(name all parties taking the appeal) * appeal to the United States Court of Appeals for the ___ Circuit from the decision entered on ____(state the date the decision was entered). (s)____________ Attorney for ______ Address: ________ * See Rule 3(c) for permissible ways of identifying appellants. (As amended Apr. 22, 1993 Dec. 1, 1993 Mar. 27, 2003 Dec. 1, 2003 Apr. 14, 2021 Dec. 1, 2021 Form 3 . Petition for Review of Order of an Agency, Board, Commission or Officer United States Court of Appeals for the ____ Circuit A.B., Petitioner v. XYZ Commission, W Respondent ___(here name all parties bringing the petition) *___ hereby petition the court for review of the Order of the XYZ Commission (describe the order) entered on _____, 20_. (s)_____________, Attorney for Petitioners Address:_________ * See Rule 15. (As amended Apr. 22, 1993 Dec. 1, 1993 Mar. 27, 2003 Dec. 1, 2003 Form 4 . Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis (As amended Apr. 24, 1998 Dec. 1, 1998 Apr. 28, 2010 Dec. 1, 2010 Apr. 16, 2013 Dec. 1, 2013 Apr. 26, 2018 Dec. 1, 2018 Committee Notes on Rules2010 Amendment Changes Made After Publication and Comment. Committee Notes on Rules2013 Amendment Changes Made After Publication and Comment. Form 5 . Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court or a Bankruptcy Appellate Panel United States District Court for the ____ District of ______ Notice of Appeal to United States Court of Appeals for the ______ Circuit ________, the plaintiff [or defendant or other party] appeals to the United States Court of Appeals for the ______ Circuit from the final judgment [or order or decree] of the district court for the district of ______ [or bankruptcy appellate panel of the ______ circuit], entered in this case on ______, 20__ [here describe the judgment, order, or decree] __________ The parties to the judgment [or order or decree] appealed from and the names and addresses of their respective attorneys are as follows: Dated ____________ Signed ____________ Attorney for Appellant Address: ___________ ______________ [Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration along with this Notice of Appeal. (As added Apr. 25, 1989 Dec. 1, 1989 Mar. 27, 2003 Dec. 1, 2003 Apr. 28, 2016 Dec. 1, 2016 Form 6 (As added Apr. 29, 2002 Dec. 1, 2002 Apr. 28, 2016 Dec. 1, 2016 Committee Notes on Rules2002 Changes Made After Publication and Comments. Form 7 . Declaration of Inmate Filing _______________________ [insert name of court; for example, United States District Court for the District of Minnesota] A.B., Plaintiff v. W C.D., Defendant I am an inmate confined in an institution. Today, ____ [ insert date insert title of document; for example, notice of appeal I declare under penalty of perjury that the foregoing is true and correct (see 28 U.S.C.  1746; 18 U.S.C.  1621). Sign your name here____________ Signed on ________[ insert date [Note to inmate filers: If your institution has a system designed for legal mail, you must use that system in order to receive the timing benefit of Fed. R. App. P. 4(c)(1) or Fed. R. App. P. 25(a)(2)(A)(iii). (As added Apr. 28, 2016 Dec. 1, 2016 Apr. 26, 2018 Dec. 1, 2018 APPENDIX (As added Apr. 28, 2016 Dec. 1, 2016 FEDERAL RULES OF CIVIL PROCEDURE (As amended to December 26, 2023 Historical Note The original Rules of Civil Procedure for the District Courts were adopted by order of the Supreme Court on Dec. 20, 1937 Jan. 3, 1938 Sept. 16, 1938 The Rules have been amended Dec. 28, 1939 Apr. 3, 1941 Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Apr. 30, 1951 Aug. 1, 1951 Apr. 17, 1961 July 19, 1961 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Mar. 30, 1970 July 1, 1970 Mar. 1, 1971 July 1, 1971 Nov. 20, 1972 Dec. 18, 1972 July 1, 1975 Apr. 29, 1980 Aug. 1, 1980 Oct. 21, 1980 Pub. L. 96481, title II,  205(a) 94 Stat. 2330 Jan. 12, 1983 Pub. L. 97462 96 Stat. 25272530 Feb. 26, 1983 Apr. 28, 1983 Aug. 1, 1983 Apr. 29, 1985 Aug. 1, 1985 Mar. 2, 1987 Aug. 1, 1987 Apr. 25, 1988 Aug. 1, 1988 Nov. 18, 1988 Pub. L. 100690, title VII 102 Stat. 4401 Apr. 30, 1991 Dec. 1, 1991 Dec. 9, 1991 Pub. L. 102198,  11 105 Stat. 1626 Apr. 22, 1993 Dec. 1, 1993 Apr. 27, 1995 Dec. 1, 1995 Apr. 23, 1996 Dec. 1, 1996 Apr. 11, 1997 Dec. 1, 1997 Apr. 24, 1998 Dec. 1, 1998 Apr. 26, 1999 Dec. 1, 1999 Apr. 17, 2000 Dec. 1, 2000 Apr. 23, 2001 Dec. 1, 2001 Apr. 29, 2002 Dec. 1, 2002 Mar. 27, 2003 Dec. 1, 2003 Apr. 25, 2005 Dec. 1, 2005 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 23, 2008 Dec. 1, 2008 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2010 Dec. 1, 2010 Apr. 16, 2013 Dec. 1, 2013 Apr. 25, 2014 Dec. 1, 2014 Apr. 29, 2015 Dec. 1, 2015 Apr. 28, 2016 Dec. 1, 2016 Apr. 27, 2017 Dec. 1, 2017 Apr. 26, 2018 Dec. 1, 2018 Apr. 27, 2020 Dec. 1, 2020 Apr. 11, 2022 Dec. 1, 2022 Apr. 24, 2023 Dec. 1, 2023    TITLE I. SCOPE OF RULES; FORM OF ACTION  Rule  1. Scope and Purpose.  2. One Form of Action.  TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS  3. Commencing an Action.  4. Summons.  4.1. Serving Other Process.  5. Serving and Filing Pleadings and Other Papers.  5.1. Constitutional Challenge to a StatuteNotice, Certification, and Intervention.  5.2. Privacy Protection For Filings Made with the Court.  6. Computing and Extending Time; Time for Motion Papers.  TITLE III. PLEADINGS AND MOTIONS  7. Pleadings Allowed; Form of Motions and Other Papers.  7.1. Disclosure Statement.  8. General Rules of Pleading.  9. Pleading Special Matters.  10. Form of Pleadings.  11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions.  12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing.  13. Counterclaim and Crossclaim.  14. Third-Party Practice.  15. Amended and Supplemental Pleadings.  16. Pretrial Conferences; Scheduling; Management.  TITLE IV. PARTIES  17. Plaintiff and Defendant; Capacity; Public Officers.  18. Joinder of Claims.  19. Required Joinder of Parties.  20. Permissive Joinder of Parties.  21. Misjoinder and Nonjoinder of Parties.  22. Interpleader.  23. Class Actions.  23.1. Derivative Actions.  23.2. Actions Relating to Unincorporated Associations.  24. Intervention.  25. Substitution of Parties.  TITLE V. DISCLOSURES AND DISCOVERY  26. Duty to Disclose; General Provisions Governing Discovery.  27. Depositions to Perpetuate Testimony.  28. Persons Before Whom Depositions May Be Taken.  29. Stipulations About Discovery Procedure.  30. Depositions by Oral Examination.  31. Depositions by Written Questions.  32. Using Depositions in Court Proceedings.  33. Interrogatories to Parties.  34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes.  35. Physical and Mental Examinations.  36. Requests for Admission.  37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions.  TITLE VI. TRIALS  38. Right to a Jury Trial; Demand.  39. Trial by Jury or by the Court.  40. Scheduling Cases for Trial.  41. Dismissal of Actions.  42. Consolidation; Separate Trials.  43. Taking Testimony.  44. Proving an Official Record.  44.1. Determining Foreign Law.  45. Subpoena.  46. Objecting to a Ruling or Order.  47. Selecting Jurors.  48. Number of Jurors; Verdict; Polling.  49. Special Verdict; General Verdict and Questions.  50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling.  51. Instructions to the Jury; Objections; Preserving a Claim of Error.  52. Findings and Conclusions by the Court; Judgment on Partial Findings.  53. Masters.  TITLE VII. JUDGMENT  54. Judgment; Costs.  55. Default; Default Judgment.  56. Summary Judgment.  57. Declaratory Judgment.  58. Entering Judgment.  59. New Trial; Altering or Amending a Judgment.  60. Relief from a Judgment or Order.  61. Harmless Error.  62. Stay of Proceedings to Enforce a Judgment.  62.1. Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal.  63. Judges Inability to Proceed.  TITLE VIII. PROVISIONAL AND FINAL REMEDIES  64. Seizing a Person or Property.  65. Injunctions and Restraining Orders.  65.1. Proceedings Against a Security Provider.  66. Receivers.  67. Deposit into Court.  68. Offer of Judgment.  69. Execution.  70. Enforcing a Judgment for a Specific Act.  71. Enforcing Relief For or Against a Nonparty.  TITLE IX. SPECIAL PROCEEDINGS  71.1. Condemning Real or Personal Property.  [71A. Renumbered.]  72. Magistrate Judges: Pretrial Order.  73. Magistrate Judges: Trial by Consent; Appeal.  74. [Abrogated.]  75. [Abrogated.]  76. [Abrogated.]  TITLE X. DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS; ISSUING ORDERS  77. Conducting Business; Clerks Authority; Notice of an Order or Judgment.  78. Hearing Motions; Submission on Briefs.  79. Records Kept by the Clerk.  80. Stenographic Transcript as Evidence.  TITLE XI. GENERAL PROVISIONS  81. Applicability of the Rules in General; Removed Actions.  82. Jurisdiction and Venue Unaffected.  83. Rules by District Courts; Judges Directives.  84. [Abrogated.]  85. Title.  86. Effective Dates.  87. Civil Rules Emergency.  APPENDIX OF FORMS  [Abrogated.]  SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME CLAIMS AND ASSET FORFEITURE ACTIONS  Rule  A. Scope of Rules.  B. In Personam Actions: Attachment and Garnishment.  C. In Rem Actions: Special Provisions.  D. Possessory, Petitory, and Partition Actions.  E. Actions in Rem and Quasi in Rem: General Provisions.  F. Limitation of Liability.  G. Forfeiture Actions in Rem.  SUPPLEMENTAL RULES FOR SOCIAL SECURITY ACTIONS UNDER 42 U.S.C.  405(g)  Rule  1. Review of Social Security Decisions Under 42 U.S.C.  405(g).  2. Complaint.  3. Service.  4. Answer; Motions; Time.  5. Presenting the Action for Decision.  6. Plaintiffs Brief.  7. Commissioners Brief.  8. Reply Brief.  References to Equity Rules The Federal Rules of Civil Procedure supplant the Equity Rules since in general they cover the field now covered by the Equity Rules and the Conformity Act (former section 724 of this title This table shows the Equity Rules to which references are made in the notes to the Federal Rules of Civil Procedure.     Equity Rules Federal Rules of Civil Procedure  1 77 2 77 3 79 4 77 5 77 6 78 7 4, 70 8 6, 70 9 70 10 18, 54 11 71 12 3, 4, 5, 12, 55 13 4 14 4 15 4, 45 16 6, 55 17 55 18 7, 8 19 1, 15, 61 20 12 21 11, 12 22 1 23 1, 39 24 11 25 8, 9, 10, 19 26 18, 20, 82 27 23 28 15 29 7, 12, 42, 55 30 8, 13, 82 31 7, 8, 12, 55 32 15 33 7, 12 34 15 35 15 36 11 37 17, 19, 20, 24 38 23 39 19 40 20 41 17 42 19, 20 43 12, 21 44 12, 21 45 25 46 43, 61 47 26 48 43 49 53 50 30, 80 51 30, 53 52 45, 53 53 53 54 26 55 30 56 40 57 40 58 26, 33, 34, 36 59 53 60 53 61 53 6112 53 62 53 63 53 64 26 65 53 66 53 67 53 68 53 69 59 70 17 7012 52 71 54 72 60, 61 73 65 74 62 75 75 76 75 77 76 78 43 79 83 80 6 81 86 RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS 1 1 December 29, 1948 October 20, 1949 TITLE I. SCOPE OF RULES; FORM OF ACTION Rule 1. Scope and Purpose  These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. (As amended Dec. 29, 1948 Oct. 20, 1949 Feb. 28, 1966 July 1, 1966 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007 Apr. 29, 2015 Dec. 1, 2015  Notes of Advisory Committee on Rules1937 1. Rule 81 states certain limitations in the application of these rules to enumerated special proceedings. 2. The expression district courts of the United States appearing in the statute authorizing the Supreme Court of the United States to promulgate rules of civil procedure does not include the district courts held in the Territories and insular possessions. See Mookini et al. v. United States 3. These rules are drawn under the authority of the act of June 19, 1934 A New Federal Civil ProcedureI. The Background 4. With the second sentence compare U.S.C., Title 28, [former]  777 (Defects of form; amendments), 767 (Amendment of process); [former] Equity Rule 19 (Amendments Generally). Notes of Advisory Committee on Rules1948 Amendment The change in nomenclature conforms to the official designation of district courts in Title 28, U.S.C.,  132(a). Notes of Advisory Committee on Rules1966 Amendment This is the fundamental change necessary to effect unification of the civil and admiralty procedure. Just as the 1938 rules abolished the distinction between actions at law and suits in equity, this change would abolish the distinction between civil actions and suits in admiralty. See also Rule 81. Notes of Advisory Committee on Rules1993 Amendment The purpose of this revision, adding the words and administered to the second sentence, is to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay. As officers of the court, attorneys share this responsibility with the judge to whom the case is assigned. Committee Notes on Rules2007 Amendment The language of Rule 1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The merger of law, equity, and admiralty practice is complete. There is no need to carry forward the phrases that initially accomplished the merger. The former reference to suits of a civil nature is changed to the more modern civil actions and proceedings. This change does not affect such questions as whether the Civil Rules apply to summary proceedings created by statute. See SEC v. McCarthy see also New Hampshire Fire Ins. Co. v Scanlon The Style Project The Civil Rules are the third set of the rules to be restyled. The restyled Rules of Appellate Procedure took effect in 1998. The restyled Rules of Criminal Procedure took effect in 2002. The restyled Rules of Civil Procedure apply the same general drafting guidelines and principles used in restyling the Appellate and Criminal Rules. 1. General Guidelines Guidelines for Drafting and Editing Court Rules Dictionary of Modern Legal Usage See also Guiding Principles for Restyling the Civil Rules Preliminary Draft of Proposed Style Revision of the Federal Rules of Civil Procedure 2. Formatting Changes 3. Changes to Reduce Inconsistent, Ambiguous, Redundant, Repetitive, or Archaic Words The restyled rules minimize the use of inherently ambiguous words. For example, the word shall can mean must, may, or something else, depending on context. The potential for confusion is exacerbated by the fact that shall is no longer generally used in spoken or clearly written English. The restyled rules replace shall with must, may, or should, depending on which one the context and established interpretation make correct in each rule. The restyled rules minimize the use of redundant intensifiers. These are expressions that attempt to add emphasis, but instead state the obvious and create negative implications for other rules. The court in its discretion may becomes the court may; unless the order expressly directs otherwise becomes unless the court orders otherwise. The absence of intensifiers in the restyled rules does not change their substantive meaning. For example, the absence of the word reasonable to describe the written notice of foreign law required in Rule 44.1 does not mean that unreasonable notice is permitted. The restyled rules also remove words and concepts that are outdated or redundant. The reference to at law or in equity in Rule 1 has become redundant with the merger of law and equity. Outdated words and concepts include the reference to demurrers, pleas, and exceptions in Rule 7(c); the reference to mesne process in Rule 77(c); and the reference in Rule 81(f) to a now-abolished official position. The restyled rules remove a number of redundant cross-references. For example, Rule 8(b) states that a general denial is subject to the obligations of Rule 11, but all pleadings are subject to Rule 11. Removing such cross-references does not defeat application of the formerly cross-referenced rule. 4. Rule Numbers 5. Other Changes Changes Made After Publication and Comment. Style Rules 186 Most of the changes in Styles Rule [sic] 186 reflect style improvements made in response to public comments and continuing work by consultants, reporters, Subcommittees A and B, the Standing Committee Style Subcommittee, and the Advisory Committee. They are marked above [omitted] as changes made after publication. An explanation of each would be both burdensome and unnecessary. Many are self-explanatory. Some are set out in the introduction to the Style Project materials. Others are explained in the minutes of the May 2006 Civil Rules Committee meeting. A few changesand decisions against changedeserve individual mention here as well. Present Rule 1 says that the Rules govern in all suits of a civil nature. Style Rule 1 as published changed this to all civil actions and proceedings. Comments suggested that the addition of proceedings might inadvertently expand the domain governed by the Civil Rules. The Standing Committee Style Subcommittee was persuaded that and proceedings should be removed. Subcommittee A accepted this recommendation. Further consideration, however, persuaded the Advisory Committee that and proceedings should be retained. The reasons for concluding that the term civil actions does not express all of the events properly governed by the Rules are described in the draft Minutes for the May meeting. As noted in the introduction, the Committee Note to Rule 1 is expanded to include a general description of the Style Project. Present Rule 25(a)(1) is a classic illustration of the shall trap. It says that the action shall be dismissed as to a deceased party unless a motion to substitute is made within 90 days after death is suggested on the record. Style Rule 25(a)(1) translated shall as may, providing that the action may be dismissed. This choice was bolstered by considering the effects of the Rule 6(b) authority to extend the 90-day period even after it expires. To say that the court must dismiss might distract attention from the alternative authority to extend the time and grant a motion to substitute. Comments suggested that may effects a substantive change. The comments took pains to express no view on the desirability of substantive change. The Committee concluded that it is better to replace may with must, and to delete the Committee Note explanation of the Rule 6(b) reasons for concluding that may does not work a substantive change. A syntactic ambiguity in Rule 65(d) was corrected in response to comments and further research demonstrating that the ambiguity resulted from inadvertent omission of a comma when the Rule was adopted to carry forward former 28 U.S.C.  363. As revised, Rule 65(d) clearly provides that an injunction binds a party only after actual notice. It also clearly provides that after actual notice of an injunction, the injunction binds a person in active concert or participation with a partys officers, agents, servants, employees, and attorneys. The change is explained further in the new paragraph added to the Rule 65 Committee Note. Finally, the Committee decided not to change the approach taken to identifying shifts of material among subdivisions. The Bankruptcy Rules Committee urged that the Committee Notes should identify decisions to rearrange material among subdivisions of the same rule to improve clarity and simplicity. In Rule 12, for example, subdivision (c) was divided between Style Rule 12(c) and (d), while former subdivision (d) became Style Rule 12(i). The purpose of expanding the Committee Notes would be to alert future researchersparticularly those who rely on tightly focused electronic searchesto define search terms that will reach back before the Style Amendments took effect. The approach taken in the published Style Rules was to identify in Committee Notes only the one instance in which material was shifted between Rulesfrom Rule 25 to Rule 17. Forty-four shifts among subdivisions of the same rule were charted in Appendix B, Current and Restyled Rules Comparison Chart The chart is set out below [omitted]. The Committee decided again that this approach is better than the alternative of adding length to many of the Committee Notes. It can be expected that many rules publications will draw attention to the changes identified in the chart. Style-Substance Track Two rules published on the Style-Substance Track were abandoned. Rule 8 would have been revised to call for a demand for the relief sought, which may include alternative forms or different types of relief. Comments showed that the old-fashioned relief in the alternative better describes circumstances in which the pleader is uncertain as to the available forms of relief, or prefers a form of relief that may not be available. Rule 36 would have been amended to make clear the rule that an admission adopted at a final pretrial conference can be withdrawn or amended only on satisfying the manifest injustice standard of Style Rule 16(e). Revisions of Style Rule 16(e) make this clear, avoiding the need to further amend Rule 36. E-Discovery Style Amendments: Rules 16, 26, 33, 34, 37, and 45 As noted above [omitted], the Style revisions to the e-discovery amendments published for comment in 2004, before the Style Project was published for comment in 2005, are all changes made after publication. All involve pure style. They can be evaluated by reading the overstrike-underline version set out above [omitted]. Committee Notes on Rules2015 Amendment Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent withand indeed depends uponcooperative and proportional use of procedure. This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules. Rule 2. One Form of Action  There is one form of actionthe civil action. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 1. This rule modifies U.S.C., Title 28, [former]  384 (Suits in equity, when not sustainable). U.S.C., Title 28,  723 and 730 [see 2071 et seq.] (conferring power on the Supreme Court to make rules of practice in equity), are unaffected insofar as they relate to the rule making power in admiralty. These sections, together with  723b [see 2072] (Rules in actions at law; Supreme Court authorized to make) are continued insofar as they are not inconsistent with  723c [see 2072] (Union of equity and action at law rules; power of Supreme Court). See Note 3 to Rule 1. U.S.C., Title 28, [former]  724 (Conformity act), 397 (Amendments to pleadings when case brought to wrong side of court) and 398 (Equitable defenses and equitable relief in actions at law) are superseded. 2. Reference to actions at law or suits in equity in all statutes should now be treated as referring to the civil action prescribed in these rules. 3. This rule follows in substance the usual introductory statements to code practices which provide for a single action and mode of procedure, with abolition of forms of action and procedural distinctions. Representative statutes are N.Y. Code 1848 (Laws 1848, ch. 379)  62; N.Y.C.P.A. (1937)  8; Calif.Code Civ.Proc. (Deering, 1937)  307; 2 Minn.Stat. (Mason, 1927)  9164; 2 Wash.Rev.Stat.Ann. (Remington, 1932)  153, 255. Committee Notes on Rules2007 Amendment The language of Rule 2 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS Rule 3. Commencing an Action  A civil action is commenced by filing a complaint with the court. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 1. Rule 5(e) defines what constitutes filing with the court. 2. This rule governs the commencement of all actions, including those brought by or against the United States or an officer or agency thereof, regardless of whether service is to be made personally pursuant to Rule 4(d), or otherwise pursuant to Rule 4(e). 3. With this rule compare [former] Equity Rule 12 (Issue of SubpoenaTime for Answer) and the following statutes (and other similar statutes) which provide a similar method for commencing an action: U.S.C., Title 28:  45 [former] (District courts; practice and procedure in certain cases under interstate commerce laws).  762 [see 1402] (Petition in suit against United States).  766 [see 2409] (Partition suits where United States is tenant in common or joint tenant). 4. This rule provides that the first step in an action is the filing of the complaint. Under Rule 4(a) this is to be followed forthwith by issuance of a summons and its delivery to an officer for service. Other rules providing for dismissal for failure to prosecute suggest a method available to attack unreasonable delay in prosecuting an action after it has been commenced. When a Federal or State statute of limitations is pleaded as a defense, a question may arise under this rule whether the mere filing of the complaint stops the running of the statute, or whether any further step is required, such as, service of the summons and complaint or their delivery to the marshal for service. The answer to this question may depend on whether it is competent for the Supreme Court, exercising the power to make rules of procedure without affecting substantive rights, to vary the operation of statutes of limitations. The requirement of Rule 4(a) that the clerk shall forthwith issue the summons and deliver it to the marshal for service will reduce the chances of such a question arising. Committee Notes on Rules2007 Amendment The caption of Rule 3 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 4. Summons (a) Contents; Amendments. (1)  Contents. (A) name the court and the parties; (B) be directed to the defendant; (C) state the name and address of the plaintiffs attorney orif unrepresentedof the plaintiff; (D) state the time within which the defendant must appear and defend; (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the courts seal. (2)  Amendments. (b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summonsor a copy of a summons that is addressed to multiple defendantsmust be issued for each defendant to be served. (c) Service. (1)  In General. (2)  By Whom. (3)  By a Marshal or Someone Specially Appointed. (d) Waiving Service. (1)  Requesting a Waiver. (A) be in writing and be addressed: (i) to the individual defendant; or (ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process; (B) name the court where the complaint was filed; (C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form; (D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service; (E) state the date when the request is sent; (F) give the defendant a reasonable time of at least 30 days after the request was sentor at least 60 days if sent to the defendant outside any judicial district of the United Statesto return the waiver; and (G) be sent by first-class mail or other reliable means. (2)  Failure to Waive. (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorneys fees, of any motion required to collect those service expenses. (3)  Time to Answer After a Waiver. (4)  Results of Filing a Waiver. (5)  Jurisdiction and Venue Not Waived. (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individualother than a minor, an incompetent person, or a person whose waiver has been filedmay be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individuals dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. (f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individualother than a minor, an incompetent person, or a person whose waiver has been filedmay be served at a place not within any judicial district of the United States: (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: (A) as prescribed by the foreign countrys law for service in that country in an action in its courts of general jurisdiction; (B) as the foreign authority directs in response to a letter rogatory or letter of request; or (C) unless prohibited by the foreign countrys law, by: (i) delivering a copy of the summons and of the complaint to the individual personally; or (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or (3) by other means not prohibited by international agreement, as the court orders. (g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3). (h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendants waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: (1) in a judicial district of the United States: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process andif the agent is one authorized by statute and the statute so requiresby also mailing a copy of each to the defendant; or (2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). (i) Serving the United States and Its Agencies, Corporations, Officers, or Employees. (1)  United States. (A) (i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is broughtor to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerkor (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorneys office; (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and (C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer. (2)  Agency; Corporation; Officer or Employee Sued in an Official Capacity. (3)  Officer or Employee Sued Individually. (4)  Extending Time. (A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or (B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee. (j) Serving a Foreign, State, or Local Government. (1)  Foreign State. (2)  State or Local Government. (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that states law for serving a summons or like process on such a defendant. (k) Territorial Limits of Effective Service. (1)  In General. (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; (B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or (C) when authorized by a federal statute. (2)  Federal Claim Outside State-Court Jurisdiction. (A) the defendant is not subject to jurisdiction in any states courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws. (l) Proving Service. (1)  Affidavit Required. (2)  Service Outside the United States. (A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or (B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee. (3)  Validity of Service; Amending Proof. (m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the courton motion or on its own after notice to the plaintiffmust 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). (n) Asserting Jurisdiction over Property or Assets. (1)  Federal Law. (2)  State Law. (As amended Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Apr. 29, 1980 Aug. 1, 1980 Pub. L. 97462,  2 Jan. 12, 1983 96 Stat. 2527 Feb. 26, 1983 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 17, 2000 Dec. 1, 2000 Apr. 30, 2007 Dec. 1, 2007 Apr. 29, 2015 Dec. 1, 2015 Apr. 28, 2016 Dec. 1, 2016 Apr. 27, 2017 Dec. 1, 2017  Rule 4 Notice of a Lawsuit and Request to Waive Service of Summons. (Caption) To ( name the defendant orif the defendant is a corporation, partnership, or associationname an officer or agent authorized to receive service Why are you getting this? A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached. This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these expenses, you must return the signed waiver within ( give at least 30 days or at least 60 days if the defendant is outside any judicial district of the United States What happens next? If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States). If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service. Please read the enclosed statement about the duty to avoid unnecessary expenses. I certify that this request is being sent to you on the date below. Date:___________ ___________________________ (Signature of the attorney or unrepresented party) ___________________________ (Printed name) ___________________________ (Address) ___________________________ (E-mail address) ___________________________ (Telephone number) Rule 4 Waiver of the Service of Summons. (Caption) To ( name the plaintiffs attorney or the unrepresented plaintiff I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you. I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case. I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the courts jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service. I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from ___________, the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent. Date:___________ ___________________________ (Signature of the attorney or unrepresented party) ___________________________ (Printed name) ___________________________ (Address) ___________________________ (E-mail address) ___________________________ (Telephone number) (Attach the following) Duty to Avoid Unnecessary Expenses of Serving a Summons Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure. Good cause does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendants property. If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service. If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served. Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Note to Subdivision (b) U.S.C., Title 28,  721 [now 1691] (Sealing and testing of writs) is substantially continued insofar as it applies to a summons, but its requirements as to teste of process are superseded. U.S.C., Title 28, [former]  722 (Teste of process, day of), is superseded. See Rule 12(a) for a statement of the time within which the defendant is required to appear and defend. Note to Subdivision (c) June 15, 1935 U.S.C., Title 15:  5 (Bringing in additional parties) (Sherman Act)  10 (Bringing in additional parties)  25 (Restraining violations; procedure) U.S.C., Title 28:  45 [former] (Practice and procedure in certain cases under the interstate commerce laws) Compare [former] Equity Rule 15 (Process, by Whom Served). Note to Subdivision (d) Paragraph (1). For an example of a statute providing for service upon an agent of an individual see U.S.C., Title 28,  109 [now 1400, 1694] (Patent cases). Paragraph (3). This enumerates the officers and agents of a corporation or of a partnership or other unincorporated association upon whom service of process may be made, and permits service of process only upon the officers, managing or general agents, or agents authorized by appointment or by law, of the corporation, partnership or unincorporated association against which the action is brought. See Christian v. International Assn of Machinists Singleton v. Order of Railway Conductors of America Operative Plasterers and Cement Finishers International Assn of the United States and Canada v. Case For a statute authorizing service upon a specified agent and requiring mailing to the defendant, see U.S.C., Title 6,  7 [now Title 31,  9306] (Surety companies as sureties; appointment of agents; service of process). Paragraphs (4) and (5) provide a uniform and comprehensive method of service for all actions against the United States or an officer or agency thereof. For statutes providing for such service, see U.S.C., Title 7,  217 (Proceedings for suspension of orders), 499k (Injunctions; application of injunction laws governing orders of Interstate Commerce Commission), 608c(15)(B) (Court review of ruling of Secretary of Agriculture), and 855 (making  608c(15)(B) applicable to orders of the Secretary of Agriculture as to handlers of anti-hog-cholera serum and hog-cholera virus); U.S.C., Title 26, [former]  1569 (Bill in chancery to clear title to realty on which the United States has a lien for taxes); U.S.C., Title 28, [former]  45 (District Courts; practice and procedure in certain cases under the interstate commerce laws), [former] 763 (Petition in suit against the United States; service; appearance by district attorney), 766 [now 2409] (Partition suits where United States is tenant in common or joint tenant), 902 [now 2410] (Foreclosure of mortgages or other liens on property in which the United States has an interest). These and similar statutes are modified insofar as they prescribe a different method of service or dispense with the service of a summons. For the [former] Equity Rule on service, see [former] Equity Rule 13 (Manner of Serving Subpoena). Note to Subdivision (e) Note to Subdivision (f) U.S.C., Title 28,  113 [now 1392] (Suits in States containing more than one district) (where there are two or more defendants residing in different districts), [former] 115 (Suits of a local nature), 116 [now 1392] (Property in different districts in same State), [former] 838 (Executions run in all districts of State); U.S.C., Title 47,  13 (Action for damages against a railroad or telegraph company whose officer or agent in control of a telegraph line refuses or fails to operate such line in a certain mannerupon any agent of the company found in such state); U.S.C., Title 49,  321(c) [see 13304(a)] (Requiring designation of a process agent by interstate motor carriers and in case of failure so to do, service may be made upon any agent in the State) and similar statutes, allowing the running of process throughout a State, are substantially continued. U.S.C., Title 15,  5 (Bringing in additional parties) (Sherman Act), 25 (Restraining violations; procedure); U.S.C., Title 28,  44 [now 2321] (Procedure in certain cases under interstate commerce laws; service of processes of court), 117 [now 754, 1692] (Property in different States in same circuit; jurisdiction of receiver), 839 [now 2413] (Executions; run in every State and Territory) and similar statutes, providing for the running of process beyond the territorial limits of a State, are expressly continued. Note to Subdivision (g) Note to Subdivision (h) Notes of Advisory Committee on Rules1963 Amendment Subdivision (b) Subdivision (d)(4) Subdivision (d)(7) McCoy v. Siler cert. denied Holbrook v. Cafiero Pasternack v. Dalo Super Prods. Corp. v. Parkin Griffin v. Ensign Moores Federal Practice Federal Practice & Procedure Olberding v. Illinois Central R.R revd on other grounds Feinsinger v. Bard An important and growing class of State statutes base personal jurisdiction over nonresidents on the doing of acts or on other contacts within the State, and permit notice to be given the defendant outside the State without any requirement of service on a local State official. See, e.g., Ill.Ann.Stat. ch. 110,  16, 17 (Smith-Hurd 1956); Wis.Stat.  262.06 (1959). This service, employed in original Federal actions pursuant to paragraph (7), has also been held proper. See Farr & Co. v. Cia. Intercontinental de Nav. de Cuba Kappus v. Western Hills Oil, Inc Star v. Rogalny Farr & Co. v. Cia. Intercontinental de Nav. de Cuba, supra. But cf. Sappia v. Lauro Lines The salutary results of these cases are intended to be preserved. See paragraph (7), with a clarified reference to State law, and amended subdivisions (e) and (f). Subdivision (e) supra The amendment of the first sentence inserting the word thereunder supports the original intention that the order of court must be authorized by a specific United States statute. See 1 Barron & Holtzoff, supra, at 731. The clause added at the end of the first sentence expressly adopts the view taken by commentators that, if no manner of service is prescribed in the statute or order, the service may be made in a manner stated in Rule 4. See 2 Moore, supra International Aspects of Federal Civil Procedure But see Examples of the statutes to which the first sentence relates are 28 U.S.C.  2361 (Interpleader; process and procedure); 28 U.S.C.  1655 (Lien enforcement; absent defendants). The second sentence, added by amendment, expressly allows resort in original Federal actions to the procedures provided by State law for effecting service on nonresident parties (as well as on domiciliaries not found within the State). See, as illustrative, the discussion under amended subdivision (d)(7) of service pursuant to State nonresident motorist statutes and other comparable State statutes. Of particular interest is the change brought about by the reference in this sentence to State procedures for commencing actions against nonresidents by attachment and the like, accompanied by notice. Although an action commenced in a State court by attachment may be removed to the Federal court if ordinary conditions for removal are satisfied, see 28 U.S.C.  1450; Rorick v. Devon Syndicate, Ltd Clark v. Wells Attachment and Garnishment in the Federal Courts Big Vein Coal Co. v. Read Davis v. Ensign-Bickford Co Moores Federal Practice Federal Practice & Procedure The necessity of satisfying subject-matter jurisdictional requirements and requirements of venue will limit the practical utilization of these methods of effecting service. Within those limits, however, there appears to be no reason for denying plaintiffs means of commencing actions in Federal courts which are generally available in the State courts. See 1 Barron & Holtzoff, supra Comments on Proposed Amendments to Rules of Civil Procedure for the United States District Courts If the circumstances of a particular case satisfy the applicable Federal law (first sentence of Rule 4(e), as amended) and the applicable State law (second sentence), the party seeking to make the service may proceed under the Federal or the State law, at his option. See also amended Rule 13(a), and the Advisory Committees Note thereto. Subdivision (f) The bringing in of parties under the 100-mile provision in the limited situations enumerated is designed to promote the objective of enabling the court to determine entire controversies. In the light of present-day facilities for communication and travel, the territorial range of the service allowed, analogous to that which applies to the service of a subpoena under Rule 45(e)(1), can hardly work hardship on the parties summoned. The provision will be especially useful in metropolitan areas spanning more than one State. Any requirements of subject-matter jurisdiction and venue will still have to be satisfied as to the parties brought in, although these requirements will be eased in some instances when the parties can be regarded as ancillary. See Pennsylvania R.R. v. Erie Avenue Warehouse Co Dery v. Wyer United Artists Corp. v. Masterpiece Productions, Inc Lesnik v. Public Industrials Corp Vaughn v. Terminal Transp. Co supra But cf Comments on Proposed Amendments to Rules of Civil Procedure for the United States District Courts As to the need for enlarging the territorial area in which orders of commitment for civil contempt may be served, see Graber v. Graber Teele Soap Mfg. Co. v. Pine Tree Products Co., Inc Mitchell v. Dexter in re Graves As to the Courts power to amend subdivisions (e) and (f) as here set forth, see Mississippi Pub. Corp. v. Murphree Subdivision (i) International Judicial Assistance: Procedural Chaos and a Program for Reform Serving Process, Subpoenas and Other Documents in Foreign Territory International Aspects of Federal Civil Procedure As indicated in the opening lines of new subdivision (i), referring to the provisions of subdivision (e), the authority for effecting foreign service must be found in a statute of the United States or a statute or rule of court of the State in which the district court is held providing in terms or upon proper interpretation for service abroad upon persons not inhabitants of or found within the State. See the Advisory Committees Note to amended Rule 4(d)(7) and Rule 4(e). For examples of Federal and State statutes expressly authorizing such service, see 8 U.S.C.  1451(b); 35 U.S.C.  146, 293; Me.Rev.Stat., ch. 22,  70 (Supp. 1961); Minn.Stat.Ann.  303.13 (1947); N.Y.Veh. & Tfc.Law  253. Several decisions have construed statutes to permit service in foreign countries, although the matter is not expressly mentioned in the statutes. See, e.g., Chapman v. Superior Court Sperry v. Fliegers Ewing v. Thompson Rushing v. Bush Under subdivisions (e) and (i), when authority to make foreign service is found in a Federal statute or statute or rule of court of a State, it is always sufficient to carry out the service in the manner indicated therein. Subdivision (i) introduces considerable further flexibility by permitting the foreign service and return thereof to be carried out in any of a number of other alternative ways that are also declared to be sufficient. Other aspects of foreign service continue to be governed by the other provisions of Rule 4. Thus, for example, subdivision (i) effects no change in the form of the summons, or the issuance of separate or additional summons, or the amendment of service. Service of process beyond the territorial limits of the United States may involve difficulties not encountered in the case of domestic service. Service abroad may be considered by a foreign country to require the performance of judicial, and therefore sovereign, acts within its territory, which that country may conceive to be offensive to its policy or contrary to its law. See Jones, supra Report on Uniformity of Legislation on International Cooperation in Judicial Procedures ibid. One of the purposes of subdivision (i) is to allow accommodation to the policies and procedures of the foreign country. It is emphasized, however, that the attitudes of foreign countries vary considerably and that the question of recognition of United States judgments abroad is complex. Accordingly, if enforcement is to be sought in the country of service, the foreign law should be examined before a choice is made among the methods of service allowed by subdivision (i). Subdivision (i)(1) Report on Uniformity of Legislation on International Cooperation in Judicial Procedures, supra. In certain foreign countries service in aid of litigation pending in other countries can lawfully be accomplished only upon request to the foreign court, which in turn directs the service to be made. In many countries this has long been a customary way of accomplishing the service. See In re Letters Rogatory out of First Civil Court of City of Mexico Jones, supra Milliken v. Meyer Subparagraph (C) of paragraph (1), permitting foreign service by personal delivery on individuals and corporations, partnerships, and associations, provides for a manner of service that is not only traditionally preferred, but also is most likely to lead to actual notice. Explicit provision for this manner of service was thought desirable because a number of Federal and State statutes permitting foreign service do not specifically provide for service by personal delivery abroad, see e.g., 35 U.S.C.  146, 293; 46 [App.] U.S.C.  1292; Calif.Ins.Code  1612; N.Y.Veh. & Tfc.Law  253, and it also may be unavailable under the law of the country in which the service is made. Subparagraph (D) of paragraph (1), permitting service by certain types of mail, affords a manner of service that is inexpensive and expeditious, and requires a minimum of activity within the foreign country. Several statutes specifically provide for service in a foreign country by mail, e.g., Hawaii Rev.Laws  23031, 23032 (1955); Minn.Stat.Ann.  303.13 (1947); N.Y.Civ.Prac.Act,  229b; N.Y.Veh. & Tfc.Law  253, and it has been sanctioned by the courts even in the absence of statutory provision specifying that form of service. Zurini v. United States United States v. Cardillo Autogiro Co. v. Kay Gyroplanes, Ltd Under the applicable law it may be necessary, when the defendant is an infant or incompetent person, to deliver the summons and complaint to a guardian, committee, or similar fiduciary. In such a case it would be advisable to make service under subparagraph (A), (B), or (E). Subparagraph (E) of paragraph (1) adds flexibility by permitting the court by order to tailor the manner of service to fit the necessities of a particular case or the peculiar requirements of the law of the country in which the service is to be made. A similar provision appears in a number of statutes, e.g., 35 U.S.C.  146, 293; 38 U.S.C.  784(a); 46 [App.] U.S.C.  1292. The next-to-last sentence of paragraph (1) permits service under (C) and (E) to be made by any person who is not a party and is not less than 18 years of age or who is designated by court order or by the foreign court. Cf. Rule 45(c); N.Y.Civ.Prac.Act  233, 235. This alternative increases the possibility that the plaintiff will be able to find a process server who can proceed unimpeded in the foreign country; it also may improve the chances of enforcing the judgment in the country of service. Especially is the alternative valuable when authority for the foreign service is found in a statute or rule of court that limits the group of eligible process servers to designated officials or special appointees who, because directly connected with another sovereign, may be particularly offensive to the foreign country. See generally Smit, supra The last sentence of paragraph (1) sets forth an alternative manner for the issuance and transmission of the summons for service. After obtaining the summons from the clerk, the plaintiff must ascertain the best manner of delivering the summons and complaint to the person, court, or officer who will make the service. Thus the clerk is not burdened with the task of determining who is permitted to serve process under the law of a particular country or the appropriate governmental or nongovernmental channel for forwarding a letter rogatory. Under (D), however, the papers must always be posted by the clerk. Subdivision (i)(2) supra supra Aero Associates, Inc. v. La Metropolitana Notes of Advisory Committee on Rules1966 Amendment The wording of Rule 4(f) is changed to accord with the amendment of Rule 13(h) referring to Rule 19 as amended. Notes of Advisory Committee on Rules1980 Amendment Subdivision (a) Subdivision (c) There is a troublesome ambiguity in Rule 4. Rule 4(c) directs that all process is to be served by the marshal, by his deputy, or by a person specially appointed by the court. But Rule 4(d)(7) authorizes service in certain cases in the manner prescribed by the law of the state in which the district court is held. . . . And Rule 4(e), which authorizes service beyond the state and service in quasi in rem e.g Moores Federal Practice Federal Practice and Procedure: Civil United States for the use of Tanos v. St. Paul Mercury Ins. Co Veeck v. Commodity Enterprises, Inc The ambiguity can be resolved by specific amendments to Rules 4(d)(7) and 4(e), but the Committee is of the view that there is no reason why Rule 4(c) should not generally authorize service of process in all cases by anyone authorized to make service in the courts of general jurisdiction of the state in which the district court is held or in which service is made. The marshal continues to be the obvious, always effective officer for service of process. Legislative Statement1983 Amendment 128 Congressional Record H9848, Dec. 15, 1982 Mr. EDWARDS of California. Mr. Speaker, in July Mr. McClory Since that time, Mr. McClory The Department of Justice and the Judicial Conference have endorsed the bill and have urged its prompt enactment. Indeed, the Department of Justice has indicated that the changes occasioned by the bill will facilitate its collection of debts owned to the Government. I have a letter from the Office of Legislative Affairs of the Department of Justice supporting the bill that I will submit for the Record Record H.R. 7154 makes much needed changes in rule 4 of the Federal Rules of Civil Procedure and is supported by all interested parties. I urge my colleagues to support it.  U.S. Department of Justice. Office of Legislative Affairs, Washington, D.C., December 10, 1982 Hon. Peter W. Rodino Chairman, Committee on the Judiciary, House of Representatives, Washington, D.C. Dear Mr. Chairman H.R. 7154 would amend Rule 4 of the Federal Rules of Civil Procedure to relieve effectively the United States Marshals Service of the duty of routinely serving summonses and complaints for private parties in civil actions and would thus achieve a goal this Department has long sought. Experience has shown that the Marshals Services increasing workload and limited budget require such major relief from the burdens imposed by its role as process-server in all civil actions. The bill would also amend Rule 4 to permit certain classes of defendants to be served by first class mail with a notice and acknowledgment of receipt form enclosed. We have previously expressed a preference for the service-by-mail provisions of the proposed amendments to Rule 4 which the Supreme Court transmitted to Congress on April 28, 1982 The amendments proposed by the Supreme Court would permit service by registered or certified mail, return receipt requested. We had regarded the Supreme Court proposal as the more efficient because it would not require and affirmative act of signing and mailing on the part of a defendant. Moreover, the Supreme Court proposal would permit the entry of a default judgment if the record contained a returned receipt showing acceptance by the defendant or a returned envelope showing refusal of the process by the defendant and subsequent service and notice by first class mail. However, critics of that system of mail service have argued that certified mail is not an effective method of providing actual notice to defendants of claims against them because signatures may be illegible or may not match the name of the defendant, or because it may be difficult to determine whether mail has been unclaimed or refused, the latter providing the sole basis for a default judgment. As you know, in light of these criticisms the Congress enacted Public Law 97227 October 1, 1983 During the floor consideration of H.R. 6663 Congressman Edwards and other proponents of the delayed effective date pledged to expedite the review of the proposed amendments to Rule 4, given the need to provide prompt relief for the Marshals Service in the service of process area. In this spirit Judiciary Committee staff consulted with representatives of this Department, the Judicial Conference, and others who had voiced concern about the proposed amendments. H.R. 7154 is the product of those consultations and accommodated the concerns of the Department in a very workable and acceptable manner. Accordingly, we are satisfied that the provisions of H.R. 7154 merit the support of all three branches of the Federal Government and everyone else who has a stake in the fair and efficient service of process in civil actions. We urge prompt consideration of H.R. 7154 by the Committee. 1 The Office of Management and Budget has advised that there is no objection to the submission of this report from the standpoint of the Administrations program. Sincerely,  Robert A. McConnell, Assistant Attorney General. _______ 1 H.R. 7154Federal Rules of Civil Procedure Amendments Act of 1982 background The Federal Rules of Civil Procedure set forth the procedures to be followed in civil actions and proceedings in United States district courts. These rules are usually amended by a process established by 28 U.S.C. 2072 1 On April 28, 1982 August 1, 1982 The amendments to Rule 4 of the Federal Rules of Civil Procedure were intended primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions. Appendix II, at 7 (Report of the Committee on Rules of Practice and Procedure), 16 (Advisory Committee Note). The Committee received numerous complaints that the changes not only failed to achieve that goal, but that in the process the changes saddled litigators with flawed mail service, deprived litigants of the use of effective local procedures for service, and created a time limit for service replete with ambiguities that could only be resolved by costly litigation. See House Report No. 97662, at 24 (1982). In order to consider these criticisms, Congress enacted Public Law 97227 October 1, 1983 2 October 1, 1983 3 With that deadline and purpose in mind, consultations were held with representatives of the Judicial Conference, the Department of Justice, and others who had voiced concern about the proposed amendments. H.R. 7154 is the product of those consultations. The bill seeks to effectuate the policy of relieving the Marshals Service of the duty of routinely serving summonses and complaints. It provides a system of service by mail modeled upon a system found to be effective in California, and finally, it makes appropriate stylistic, grammatical, and other changes in Rule 4. need for the legislation 1. Current Rule 4 Rule 4 of the Federal Rules of Civil Procedure relates to the issuance and service of process. Subsection (c) authorizes service of process by personnel of the Marshals Service, by a person specially appointed by the Court, or by a person authorized to serve process in an action brought in the courts of general jurisdiction of the state in which the district court is held or in which service is made. Subsection (d) describes how a summons and complaint must be served and designates those persons who must be served in cases involving specified categories of defendants. Mail service is not directly authorized. Subsection (d)(7), however, authorizes service under the law of the state in which the district court sits upon defendants described in subsections (d)(1) (certain individuals) and (d)(3) (organizations). Thus, if state law authorizes service by mail of a summons and complaint upon an individual or organization described in subsections (d)(1) or (3), then subsection (d)(7) authorizes service by mail for United States district courts in that state. 4 2. Reducing the role of marshals The Supreme Courts proposed modifications of Rule 4 were designed to alleviate the burden on the Marshals Service of serving summonses and complaints in private civil actions. Appendix II, at 7 (Report of the Committee on Rules of Practice and Procedure), 16 (Advisory Committee Note). While the Committee received no complaints about the goal of reducing the role of the Marshals Service, the Courts proposals simply failed to achieve that goal. See House Report No. 97662, at 23 (1982). The Courts proposed Rule 4(c)(2)(B) required the Marshals Service to serve summonses and complaints pursuant to any statutory provision expressly providing for service by a United States Marshal or his deputy. 5 28 U.S.C. 569(b) all including those of the courts 28 U.S.C. 569(b) 6 Had 28 U.S.C. 569(b) 28 U.S.C. 2072 28 U.S.C. 569(b) 28 U.S.C. 569(b) H.R. 7154 cures this problem and achieves the desired reduction in the role of the Marshals Service by authorizing marshals to serve summonses and complaints on behalf of the United States. By so doing, H.R. 7154 eliminates the loophole in the Courts proposed language and still provides for service by marshals on behalf of the Government. 7 3. Mail service The Supreme Courts proposed subsection (d)(7) and (8) authorized, as an alternative to personal service, mail service of summonses and complaints on individuals and organizations described in subsection (d)(1) and (3), but only through registered or certified mail, restricted delivery. Critics of that system of mail service argued that registered and certified mail were not necessarily effective methods of providing actual notice to defendants of claims against them. This was so, they argued, because signatures may be illegible or may not match the name of the defendant, or because it may be difficult to determine whether mail has been unclaimed or refused, the latter apparently providing the sole basis for a default judgment. 8 H.R. 7154 provides for a system of service by mail similar to the system now used in California. See Cal. Civ. Pro.  415.30 (West 1973). Service would be by ordinary mail with a notice and acknowledgment of receipt form enclosed. If the defendant returns the acknowledgment form to the sender within 20 days of mailing, the sender files the return and service is complete. If the acknowledgment is not returned within 20 days of mailing, then service must be effected through some other means provided for in the Rules. This system of mail service avoids the notice problems created by the registered and certified mail procedures proposed by the Supreme Court. If the proper person receives the notice and returns the acknowledgment, service is complete. If the proper person does not receive the mailed form, or if the proper person receives the notice but fails to return the acknowledgment form, another method of service authorized by law is required. 9 4. The local option The Courts proposed amendments to Rule 4 deleted the provision in current subsection (d)(7) that authorizes service of a summons and complaint upon individuals and organizations in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. The Committee received a variety of complaints about the deletion of this provision. Those in favor of preserving the local option saw no reason to forego systems of service that had been successful in achieving effective notice. 10 H.R. 7154 carries forward the policy of the current rule and permits a party to serve a summons and complaint upon individuals and organizations described in Rule 4(d)(1) and (3) in accordance with the law of the state in which the district court sits. Thus, the bill authorizes four methods of serving a summons and complaint on such defendants: (1) service by a nonparty adult (Rule 4(c)(2)(A)); (2) service by personnel of the Marshals Service, if the party qualifies, such as because the party is proceeding in forma pauperis (Rule 4(c)(2)(B)); (3) service in any manner authorized by the law of the state in which the district court is held (Rule 4(c)(2)(C)(i)); or (4) service by regular mail with a notice and acknowledgment of receipt form enclosed (Rule 4(c)(2)(C)(ii)). 11 5. Time limits Rule 4 does not currently provide a time limit within which service must be completed. Primarily because United States marshals currently effect service of process, no time restriction has been deemed necessary. Appendix II, at 18 (Advisory Committee Note). Along with the proposed changes to subdivisions (c) and (d) to reduce the role of the Marshals Service, however, came new subdivision (j), requiring that service of a summons and complaint be made within 120 days of the filing of the complaint. If service were not accomplished within that time, proposed subdivision (j) required that the action be dismissed as to that defendant without prejudice upon motion or upon the courts own initiative. Service by mail was deemed made for purposes of subdivision (j) as of the date on which the process was accepted, refused, or returned as unclaimed. 12 H.R. 7154 adopts a policy of limiting the time to effect service. It provides that if a summons and complaint have not been served within 120 days of the filing of the complaint and the plaintiff fails to show good cause for not completing service within that time, then the court must dismiss the action as to the unserved defendant. H.R. 7154 ensures that a plaintiff will be notified of an attempt to dismiss the action. If dismissal for failure to serve is raised by the court upon its own motion, the legislation requires that the court provide notice to the plaintiff. If dismissal is sought by someone else, Rule 5(a) of the Federal Rules of Civil Procedure requires that the motion be served upon the plaintiff. Like proposed subsection (j), H.R. 7154 provides that a dismissal for failure to serve within 120 days shall be without prejudice. Proposed subsection (j) was criticized by some for ambiguity because, it was argued, neither the text of subsection (j) nor the Advisory Committee Note indicated whether a dismissal without prejudice would toll a statute of limitation. See 13 If the law provides that the statute of limitation is tolled by filing and service of the complaint, then a dismissal under H.R. 7154 for failure to serve within the 120 days would, by the terms of the law controlling the tolling, bar the plaintiff from later maintaining the cause of action. 14 15 6. Conforming and clarifying subsections (d)(4) and (5) Current subsections (d)(4) and (5) prescribe which persons must be served in cases where an action is brought against the United States or an officer or agency of the United States. Under subsection (d)(4), where the United States is the named defendant, service must be made as follows: (1) personal service upon the United States attorney, an assistant United States attorney, or a designated clerical employee of the United States attorney in the district in which the action is brought; (2) registered or certified mail service to the Attorney General of the United States in Washington, D.C.; and (3) registered or certified mail service to the appropriate officer or agency if the action attacks an order of that officer or agency but does not name the officer or agency as a defendant. Under subsection (d)(5), where an officer or agency of the United States is named as a defendant, service must be made as in subsection (d)(4), except that personal service upon the officer or agency involved is required. 16 The time limit for effecting service in H.R. 7154 would present significant difficulty to a plaintiff who has to arrange for personal service upon an officer or agency that may be thousands of miles away. There is little reason to require different types of service when the officer or agency is named as a party, and H.R. 7154 therefore conforms the manner of service under subsection (d)(5) to the manner of service under subsection (d)(4). Section-by-Section Analysis section 1 Section 1 provides that the short title of the bill is the Federal Rules of Civil Procedure Amendments Act of 1982. section 2 Section 2 of the bill consists of 7 numbered paragraphs, each amending a different part of Rule 4 of the Federal Rules of Civil Procedure. Paragraph (1) deletes the requirement in present Rule 4(a) that a summons be delivered for service to the marshal or other person authorized to serve it. As amended by the legislation, Rule 4(a) provides that the summons be delivered to the plaintiff or the plaintiffs attorney, who shall be responsible for prompt service of the summons and complaint. This change effectuates the policy proposed by the Supreme Court. See Appendix II, at  (Advisory Committee Note). Paragraph (2) amends current Rule 4(c), which deals with the service of process. New Rule 4(c)(1) requires that all process, other than a subpoena or a summons and complaint, be served by the Marshals Service or by a person especially appointed for that purpose. Thus, the Marshals Service or persons specially appointed will continue to serve all process other than subpoenas and summonses and complaints, a policy identical to that proposed by the Supreme Court. See Appendix II, at 8 (Report of the Judicial Conference Committee on Rules of Practice and Procedure). The service of subpoenas is governed by Rule 45, 17 New Rule 4(c)(2)(A) sets forth the general rule that summonses and complaints shall be served by someone who is at least 18 years old and not a party to the action or proceeding. This is consistent with the Courts proposal. Appendix II, at 16 (Advisory Committee Note). Subparagraphs (B) and (C) of new Rule 4(c)(2) set forth exceptions to this general rule. Subparagraph (B) sets forth 3 exceptions to the general rule. First, subparagraph (B)(i) requires the Marshals Service (or someone specially appointed by the court) to serve summonses and complaints on behalf of a party proceeding in forma pauperis or a seaman authorized to proceed under 28 U.S.C. 1916 See 18 Subparagraph (C) of new Rule 4(c)(2) provides 2 exceptions to the general rule of service by a nonparty adult. These exceptions apply only when the summons and complaint is to be served upon persons described in Rule 4(d)(1) (certain individuals) or Rule 4(d)(3) (organizations). 19 Second, subparagraph (C)(ii) permits service of a summons and complaint by regular mail. The sender must send to the defendant, by first-class mail, postage prepaid, a copy of the summons and complaint, together with 2 copies of a notice and acknowledgment of receipt of summons and complaint form and a postage prepaid return envelope addressed to the sender. If a copy of the notice and acknowledgment form is not received by the sender within 20 days after the date of mailing, then service must be made under Rule 4(c)(2)(A) or (B) (i.e., by a nonparty adult or, if the person qualifies, 20 New Rule 4(c)(2)(D) permits a court to penalize a person who avoids service by mail. It authorizes the court to order a person who does not return the notice and acknowledgment form within 20 days after mailing to pay the costs of service, unless that person can show good cause for failing to return the form. The purpose of this provision is to encourage the prompt return of the form so that the action can move forward without unnecessary delay. Fairness requires that a person who causes another additional and unnecessary expense in effecting service ought to reimburse the party who was forced to bear the additional expense. Subparagraph (E) of rule 4(c)(2) requires that the notice and acknowledgment form described in new Rule 4(c)(2)(C)(ii) be executed under oath or affirmation. This provision tracks the language of 28 U.S.C. 1746 21 New Rule 4(c)(3) authorizes the court freely to make special appointments to serve summonses and complaints under Rule 4(c)(2)(B) and all other process under Rule 4(c)(1). This carries forward the policy of present Rule 4(c). Paragraph (3) of section 2 of the bill makes a non-substantive change in the caption of Rule 4(d) in order to reflect more accurately the provisions of Rule 4(d). Paragraph (3) also deletes a provision on service of a summons and complaint pursuant to state law. This provision is redundant in view of new Rule 4(c)(2)(C)(i). Paragraph (4) of section 2 of the bill conforms Rule 4(d)(5) to present Rule 4(d)(4). Rule 4(d)(5) is amended to provide that service upon a named defendant agency or officer of the United States shall be made by sending a copy of the summons and complaint by registered or certified mail to the defendant. 22 28 U.S.C. 1391(e) Paragraph (5) of section 2 of the bill amends the caption of Rule 4(e) in order to describe subdivision (e) more accurately. Paragraph (6) of section 2 of the bill amends Rule 4(g), which deals with return of service. Present rule 4(g) is not changed except to provide that, if service is made pursuant to the new system of mail service (Rule 4(c)(2)(C)(ii)), the plaintiff or the plaintiffs attorney must file with the court the signed acknowledgment form returned by the person served. Paragraph (7) of section 2 of the bill adds new subsection (j) to provide a time limitation for the service of a summons and complaint. New Rule 4(j) retains the Supreme Courts requirement that a summons and complaint be served within 120 days of the filing of the complaint. See Appendix II, at 18 (Advisory Committee Note). 23 24 section 3 Section 3 of the bill amends the Appendix of Forms at the end of the Federal Rules of Civil Procedure by adding a new form 18A, Notice and Acknowledgment for Service by Mail. This new form is required by new Rule 4(c)(2)(C)(ii), which requires that the notice and acknowledgment form used with service by regular mail conform substantially to Form 18A. Form 18A as set forth in section 3 of the bill is modeled upon a form used in California. 25 26 The second part of the form contains the acknowledgment of receipt of the summons and complaint. The person served must declare on this part of the form, under penalty of perjury, the date and place of service and the persons authority to receive service. section 4 Section 4 of the bill provides that the changes in Rule 4 made by H.R. 7154 will take effect 45 days after enactment, thereby giving the bench and bar, as well as other interested persons and organizations (such as the Marshals Service), an opportunity to prepare to implement the changes made by the legislation. The delayed effective date means that service of process issued before the effective date will be made in accordance with current Rule 4. Accordingly, all process in the hands of the Marshals Service prior to the effective date will be served by the Marshals Service under the present rule. section 5 Section 5 of the bill provides that the amendments to Rule 4 proposed by the Supreme Court (whose effective date was postponed by Public Law 97227 Public Law 97227 October 1, 1983 _______ 1 28 U.S.C. 331 For background information about how the Judicial Conference committees operate, see Wright, Procedural Reform: Its Limitation and Its Future, 1 Ga.L.Rev. 563, 56566 (1967) (civil rules); statement of United States District Judge Roszel C. Thomsen, Hearings on Proposed Amendments to the Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 2d Sess. at 25 (1974) (criminal rules); statement of United States Circuit Judge J. Edward Lumbard, id. at 203 (criminal rules); J. Weinstein, Reform of Federal Court Rulemaking Procedure (1977); Weinstein, Reform of Federal Rulemaking Procedures, 76 Colum.L.Rev. 905 (1976). 2 August 1, 1982 3 August 2, 1982 4 5 See 6 7 28 U.S.C. 569(b) 28 U.S.C. 569(b) 8 The interpretation of Rule 4(d)(8) to require a refusal of delivery in order to have a basis for a default judgment, while undoubtedly the interpretation intended and the interpretation that reaches the fairest result, may not be the only possible interpretation. Since a default judgment can be entered for defendants failure to respond to the complaint once defendant has been served and the time to answer the complaint has run, it can be argued that a default judgment can be obtained where the mail was unclaimed because proposed subsection (j), which authorized dismissal of a complaint not served within 120 days, provided that mail service would be deemed made on the date on which the process was accepted, refused, or returned as unclaimed 9 10 11 12 13 Walker v. Armco Steel Corp Walker In the federal question action, the courts of appeals have generally held that Rule 3 governs, so that the filing of the complaint tolls a statute of limitation. United States v. Wahl Windbrooke Dev. Co. v. Environmental Enterprises Inc. of Fla Metropolitan Paving Co. v. International Union of Operating Engineers Moore Co. v. Sid Richardson Carbon & Gasoline Co Hoffman v. Halden Walker see Walker v. Armco Steel Corp 14 15 16 17 18 19 20 in forma pauperis. 21 22 23 24 25 26 Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Purposes of Revision. The general purpose of this revision is to facilitate the service of the summons and complaint. The revised rule explicitly authorizes a means for service of the summons and complaint on any defendant. While the methods of service so authorized always provide appropriate notice to persons against whom claims are made, effective service under this rule does not assure that personal jurisdiction has been established over the defendant served. First, the revised rule authorizes the use of any means of service provided by the law not only of the forum state, but also of the state in which a defendant is served, unless the defendant is a minor or incompetent. Second, the revised rule clarifies and enhances the cost-saving practice of securing the assent of the defendant to dispense with actual service of the summons and complaint. This practice was introduced to the rule in 1983 by an act of Congress authorizing service-by-mail, a procedure that effects economic service with cooperation of the defendant. Defendants that magnify costs of service by requiring expensive service not necessary to achieve full notice of an action brought against them are required to bear the wasteful costs. This provision is made available in actions against defendants who cannot be served in the districts in which the actions are brought. Third, the revision reduces the hazard of commencing an action against the United States or its officers, agencies, and corporations. A party failing to effect service on all the offices of the United States as required by the rule is assured adequate time to cure defects in service. Fourth, the revision calls attention to the important effect of the Hague Convention and other treaties bearing on service of documents in foreign countries and favors the use of internationally agreed means of service. In some respects, these treaties have facilitated service in foreign countries but are not fully known to the bar. Finally, the revised rule extends the reach of federal courts to impose jurisdiction over the person of all defendants against whom federal law claims are made and who can be constitutionally subjected to the jurisdiction of the courts of the United States. The present territorial limits on the effectiveness of service to subject a defendant to the jurisdiction of the court over the defendants person are retained for all actions in which there is a state in which personal jurisdiction can be asserted consistently with state law and the Fourteenth Amendment. A new provision enables district courts to exercise jurisdiction, if permissible under the Constitution and not precluded by statute, when a federal claim is made against a defendant not subject to the jurisdiction of any single state. The revised rule is reorganized to make its provisions more accessible to those not familiar with all of them. Additional subdivisions in this rule allow for more captions; several overlaps among subdivisions are eliminated; and several disconnected provisions are removed, to be relocated in a new Rule 4.1. The Caption of the Rule The revised rule is entitled Summons and applies only to that form of legal process. Unless service of the summons is waived, a summons must be served whenever a person is joined as a party against whom a claim is made. Those few provisions of the former rule which relate specifically to service of process other than a summons are relocated in Rule 4.1 in order to simplify the text of this rule. Subdivision (a) See Federal Practice and Procedure Subdivision (b) Subdivision (c) The 1983 revision of Rule 4 relieved the marshals offices of much of the burden of serving the summons. Subdivision (c) eliminates the requirement for service by the marshals office in actions in which the party seeking service is the United States. The United States, like other civil litigants, is now permitted to designate any person who is 18 years of age and not a party to serve its summons. The court remains obligated to appoint a marshal, a deputy, or some other person to effect service of a summons in two classes of cases specified by statute: actions brought in forma pauperis Subdivision (d) See Bankston v. Toyota Motor Corp The former text described this process as service-by-mail. This language misled some plaintiffs into thinking that service could be effected by mail without the affirmative cooperation of the defendant. E.g., Gulley v. Mayo Foundation The request for waiver of service may be sent only to defendants subject to service under subdivision (e), (f), or (h). The United States is not expected to waive service for the reason that its mail receiving facilities are inadequate to assure that the notice is actually received by the correct person in the Department of Justice. The same principle is applied to agencies, corporations, and officers of the United States and to other governments and entities subject to service under subdivision (j). Moreover, there are policy reasons why governmental entities should not be confronted with the potential for bearing costs of service in cases in which they ultimately prevail. Infants or incompetent persons likewise are not called upon to waive service because, due to their presumed inability to understand the request and its consequences, they must generally be served through fiduciaries. It was unclear whether the former rule authorized mailing of a request for acknowledgement of service to defendants outside the forum state. See Jurisdiction in Civil Actions The opportunity for waiver has distinct advantages to a foreign defendant. By waiving service, the defendant can reduce the costs that may ultimately be taxed against it if unsuccessful in the lawsuit, including the sometimes substantial expense of translation that may be wholly unnecessary for defendants fluent in English. Moreover, a foreign defendant that waives service is afforded substantially more time to defend against the action than if it had been formally served: under Rule 12, a defendant ordinarily has only 20 days after service in which to file its answer or raise objections by motion, but by signing a waiver it is allowed 90 days after the date the request for waiver was mailed in which to submit its defenses. Because of the additional time needed for mailing and the unreliability of some foreign mail services, a period of 60 days (rather than the 30 days required for domestic transmissions) is provided for a return of a waiver sent to a foreign country. It is hoped that, since transmission of the notice and waiver forms is a private nonjudicial act, does not purport to effect service, and is not accompanied by any summons or directive from a court, use of the procedure will not offend foreign sovereignties, even those that have withheld their assent to formal service by mail or have objected to the service-by-mail provisions of the former rule. Unless the addressee consents, receipt of the request under the revised rule does not give rise to any obligation to answer the lawsuit, does not provide a basis for default judgment, and does not suspend the statute of limitations in those states where the period continues to run until service. Nor are there any adverse consequences to a foreign defendant, since the provisions for shifting the expense of service to a defendant that declines to waive service apply only if the plaintiff and defendant are both located in the United States. With respect to a defendant located in a foreign country like the United Kingdom, which accepts documents in English, whose Central Authority acts promptly in effecting service, and whose policies discourage its residents from waiving formal service, there will be little reason for a plaintiff to send the notice and request under subdivision (d) rather than use convention methods. On the other hand, the procedure offers significant potential benefits to a plaintiff when suing a defendant that, though fluent in English, is located in a country where, as a condition to formal service under a convention, documents must be translated into another language or where formal service will be otherwise costly or time-consuming. Paragraph (1) is explicit that a timely waiver of service of a summons does not prejudice the right of a defendant to object by means of a motion authorized by Rule 12(b)(2) to the absence of jurisdiction over the defendants person, or to assert other defenses that may be available. The only issues eliminated are those involving the sufficiency of the summons or the sufficiency of the method by which it is served. Paragraph (2) states what the present rule implies: the defendant has a duty to avoid costs associated with the service of a summons not needed to inform the defendant regarding the commencement of an action. The text of the rule also sets forth the requirements for a Notice and Request for Waiver sufficient to put the cost-shifting provision in place. These requirements are illustrated in Forms 1A and 1B, which replace the former Form 18A. Paragraph (2)(A) is explicit that a request for waiver of service by a corporate defendant must be addressed to a person qualified to receive service. The general mail rooms of large organizations cannot be required to identify the appropriate individual recipient for an institutional summons. Paragraph (2)(B) permits the use of alternatives to the United States mails in sending the Notice and Request. While private messenger services or electronic communications may be more expensive than the mail, they may be equally reliable and on occasion more convenient to the parties. Especially with respect to transmissions to foreign countries, alternative means may be desirable, for in some countries facsimile transmission is the most efficient and economical means of communication. If electronic means such as facsimile transmission are employed, the sender should maintain a record of the transmission to assure proof of transmission if receipt is denied, but a party receiving such a transmission has a duty to cooperate and cannot avoid liability for the resulting cost of formal service if the transmission is prevented at the point of receipt. A defendant failing to comply with a request for waiver shall be given an opportunity to show good cause for the failure, but sufficient cause should be rare. It is not a good cause for failure to waive service that the claim is unjust or that the court lacks jurisdiction. Sufficient cause not to shift the cost of service would exist, however, if the defendant did not receive the request or was insufficiently literate in English to understand it. It should be noted that the provisions for shifting the cost of service apply only if the plaintiff and the defendant are both located in the United States, and accordingly a foreign defendant need not show good cause for its failure to waive service. Paragraph (3) extends the time for answer if, before being served with process, the defendant waives formal service. The extension is intended to serve as an inducement to waive service and to assure that a defendant will not gain any delay by declining to waive service and thereby causing the additional time needed to effect service. By waiving service, a defendant is not called upon to respond to the complaint until 60 days from the date the notice was sent to it90 days if the notice was sent to a foreign countryrather than within the 20 day period from date of service specified in Rule 12. Paragraph (4) clarifies the effective date of service when service is waived; the provision is needed to resolve an issue arising when applicable law requires service of process to toll the statute of limitations. E.g., Morse v. Elmira Country Club Cf. Walker v. Armco Steel Corp The provisions in former subdivision (c)(2)(C)(ii) of this rule may have been misleading to some parties. Some plaintiffs, not reading the rule carefully, supposed that receipt by the defendant of the mailed complaint had the effect both of establishing the jurisdiction of the court over the defendants person and of tolling the statute of limitations in actions in which service of the summons is required to toll the limitations period. The revised rule is clear that, if the waiver is not returned and filed, the limitations period under such a law is not tolled and the action will not otherwise proceed until formal service of process is effected. Some state limitations laws may toll an otherwise applicable statute at the time when the defendant receives notice of the action. Nevertheless, the device of requested waiver of service is not suitable if a limitations period which is about to expire is not tolled by filing the action. Unless there is ample time, the plaintiff should proceed directly to the formal methods for service identified in subdivisions (e), (f), or (h). The procedure of requesting waiver of service should also not be used if the time for service under subdivision (m) will expire before the date on which the waiver must be returned. While a plaintiff has been allowed additional time for service in that situation, e.g., Prather v. Raymond Constr. Co Paragraph (5) is a cost-shifting provision retained from the former rule. The costs that may be imposed on the defendant could include, for example, the cost of the time of a process server required to make contact with a defendant residing in a guarded apartment house or residential development. The paragraph is explicit that the costs of enforcing the cost-shifting provision are themselves recoverable from a defendant who fails to return the waiver. In the absence of such a provision, the purpose of the rule would be frustrated by the cost of its enforcement, which is likely to be high in relation to the small benefit secured by the plaintiff. Some plaintiffs may send a notice and request for waiver and, without waiting for return of the waiver, also proceed with efforts to effect formal service on the defendant. To discourage this practice, the cost-shifting provisions in paragraphs (2) and (5) are limited to costs of effecting service incurred after the time expires for the defendant to return the waiver. Moreover, by returning the waiver within the time allowed and before being served with process, a defendant receives the benefit of the longer period for responding to the complaint afforded for waivers under paragraph (3). Subdivision (e) Service of the summons under this subdivision does not conclusively establish the jurisdiction of the court over the person of the defendant. A defendant may assert the territorial limits of the courts reach set forth in subdivision (k), including the constitutional limitations that may be imposed by the Due Process Clause of the Fifth Amendment. Paragraph (1) authorizes service in any judicial district in conformity with state law. This paragraph sets forth the language of former subdivision (c)(2)(C)(i), which authorized the use of the law of the state in which the district court sits, but adds as an alternative the use of the law of the state in which the service is effected. Paragraph (2) retains the text of the former subdivision (d)(1) and authorizes the use of the familiar methods of personal or abode service or service on an authorized agent in any judicial district. To conform to these provisions, the former subdivision (e) bearing on proceedings against parties not found within the state is stricken. Likewise stricken is the first sentence of the former subdivision (f), which had restricted the authority of the federal process server to the state in which the district court sits. Subdivision (f) E.g., Martens v. Winder cert. denied E.g., SEC v. VTR, Inc A secondary effect of this provision for foreign service of a federal summons is to facilitate the use of federal long-arm law in actions brought to enforce the federal law against defendants who cannot be served under any state law but who can be constitutionally subjected to the jurisdiction of the federal court. Such a provision is set forth in paragraph (2) of subdivision (k) of this rule, applicable only to persons not subject to the territorial jurisdiction of any particular state. Paragraph (1) gives effect to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, which entered into force for the United States on February 10, 1969 See generally International Judicial Assistance See Volkswagenwerk Aktiengesellschaft v. Schlunk The Federal Rules and the Hague Conventions: Concerns of Conformity and Comity U. Pitt. L. Rev The Hague Convention furnishes safeguards against the abridgment of rights of parties through inadequate notice. Article 15 provides for verification of actual notice or a demonstration that process was served by a method prescribed by the internal laws of the foreign state before a default judgment may be entered. Article 16 of the Convention also enables the judge to extend the time for appeal after judgment if the defendant shows a lack of adequate notice either to defend or to appeal the judgment, or has disclosed a prima facie case on the merits. The Hague Convention does not specify a time within which a foreign countrys Central Authority must effect service, but Article 15 does provide that alternate methods may be used if a Central Authority does not respond within six months. Generally, a Central Authority can be expected to respond much more quickly than that limit might permit, but there have been occasions when the signatory state was dilatory or refused to cooperate for substantive reasons. In such cases, resort may be had to the provision set forth in subdivision (f)(3). Two minor changes in the text reflect the Hague Convention. First, the term letter of request has been added. Although these words are synonymous with letter rogatory, letter of request is preferred in modern usage. The provision should not be interpreted to authorize use of a letter of request when there is in fact no treaty obligation on the receiving country to honor such a request from this country or when the United States does not extend diplomatic recognition to the foreign nation. Second, the passage formerly found in subdivision (i)(1)(B), when service in either case is reasonably calculated to give actual notice, has been relocated. Paragraph (2) provides alternative methods for use when internationally agreed methods are not intended to be exclusive, or where there is no international agreement applicable. It contains most of the language formerly set forth in subdivision (i) of the rule. Service by methods that would violate foreign law is not generally authorized. Subparagraphs (A) and (B) prescribe the more appropriate methods for conforming to local practice or using a local authority. Subparagraph (C) prescribes other methods authorized by the former rule. Paragraph (3) authorizes the court to approve other methods of service not prohibited by international agreements. The Hague Convention, for example, authorizes special forms of service in cases of urgency if convention methods will not permit service within the time required by the circumstances. Other circumstances that might justify the use of additional methods include the failure of the foreign countrys Central Authority to effect service within the six-month period provided by the Convention, or the refusal of the Central Authority to serve a complaint seeking punitive damages or to enforce the antitrust laws of the United States. In such cases, the court may direct a special method of service not explicitly authorized by international agreement if not prohibited by the agreement. Inasmuch as our Constitution requires that reasonable notice be given, an earnest effort should be made to devise a method of communication that is consistent with due process and minimizes offense to foreign law. A court may in some instances specially authorize use of ordinary mail. Cf. Levin v. Ruby Trading Corp Subdivision (g) Subdivision (h) Frequent use should be made of the Notice and Request procedure set forth in subdivision (d) in actions against corporations. Care must be taken, however, to address the request to an individual officer or authorized agent of the corporation. It is not effective use of the Notice and Request procedure if the mail is sent undirected to the mail room of the organization. Subdivision (i) Paragraph (2) replaces former subdivision (d)(5). Paragraph (3) saves the plaintiff from the hazard of losing a substantive right because of failure to comply with the complex requirements of multiple service under this subdivision. That risk has proved to be more than nominal. E.g., Whale v. United States Subdivision (j) The revision adds a new paragraph (1) referring to the statute governing service of a summons on a foreign state and its political subdivisions, agencies, and instrumentalities, the Foreign Sovereign Immunities Act of 1976, 28 U.S.C.  1608. The caption of the subdivision reflects that change. Subdivision (k) See Jurisdiction in Civil Actions Paragraph (2) is new. It authorizes the exercise of territorial jurisdiction over the person of any defendant against whom is made a claim arising under any federal law if that person is subject to personal jurisdiction in no state. This addition is a companion to the amendments made in revised subdivisions (e) and (f). This paragraph corrects a gap in the enforcement of federal law. Under the former rule, a problem was presented when the defendant was a non-resident of the United States having contacts with the United States sufficient to justify the application of United States law and to satisfy federal standards of forum selection, but having insufficient contact with any single state to support jurisdiction under state long-arm legislation or meet the requirements of the Fourteenth Amendment limitation on state court territorial jurisdiction. In such cases, the defendant was shielded from the enforcement of federal law by the fortuity of a favorable limitation on the power of state courts, which was incorporated into the federal practice by the former rule. In this respect, the revision responds to the suggestion of the Supreme Court made in Omni Capital Intl v. Rudolf Wolff & Co., Ltd There remain constitutional limitations on the exercise of territorial jurisdiction by federal courts over persons outside the United States. These restrictions arise from the Fifth Amendment rather than from the Fourteenth Amendment, which limits state-court reach and which was incorporated into federal practice by the reference to state law in the text of the former subdivision (e) that is deleted by this revision. The Fifth Amendment requires that any defendant have affiliating contacts with the United States sufficient to justify the exercise of personal jurisdiction over that party. Cf. Wells Fargo & Co. v. Wells Fargo Express Co See DeJames v. Magnificent Carriers cert. denied Compare World-Wide Volkswagen Corp. v. Woodson Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee Burger King Corp. v. Rudzewicz Asahi Metal Indus. v. Superior Court of Cal., Solano County See generally Nationwide Service of Process: Due Process Limitations on the Power of the Sovereign Vill. L. Rev This provision does not affect the operation of federal venue legislation. See generally The district court should be especially scrupulous to protect aliens who reside in a foreign country from forum selections so onerous that injustice could result. [G]reat care and reserve should be exercised when extending our notions of personal jurisdiction into the international field. Asahi Metal Indus. v. Superior Court of Cal., Solano County United States v. First Natl City Bank This narrow extension of the federal reach applies only if a claim is made against the defendant under federal law. It does not establish personal jurisdiction if the only claims are those arising under state law or the law of another country, even though there might be diversity or alienage subject matter jurisdiction as to such claims. If, however, personal jurisdiction is established under this paragraph with respect to a federal claim, then 28 U.S.C.  1367(a) provides supplemental jurisdiction over related claims against that defendant, subject to the courts discretion to decline exercise of that jurisdiction under 28 U.S.C.  1367(c). Subdivision (l) See generally Federal Practice and Procedure Subdivision (m) The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiffs failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown. Such relief formerly was afforded in some cases, partly in reliance on Rule 6(b). Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service. E.g., Ditkof v. Owens-Illinois, Inc pro se in forma pauperis Robinson v. Americas Best Contacts & Eyeglasses The 1983 revision of this subdivision referred to the party on whose behalf such service was required, rather than to the plaintiff, a term used generically elsewhere in this rule to refer to any party initiating a claim against a person who is not a party to the action. To simplify the text, the revision returns to the usual practice in the rule of referring simply to the plaintiff even though its principles apply with equal force to defendants who may assert claims against non-parties under Rules 13(h), 14, 19, 20, or 21. Subdivision (n) Paragraph (2) provides for other uses of quasi-in-rem jurisdiction but limits its use to exigent circumstances. Provisional remedies may be employed as a means to secure jurisdiction over the property of a defendant whose person is not within reach of the court, but occasions for the use of this provision should be rare, as where the defendant is a fugitive or assets are in imminent danger of disappearing. Until 1963, it was not possible under Rule 4 to assert jurisdiction in a federal court over the property of a defendant not personally served. The 1963 amendment to subdivision (e) authorized the use of state law procedures authorizing seizures of assets as a basis for jurisdiction. Given the liberal availability of long-arm jurisdiction, the exercise of power quasi-in-rem has become almost an anachronism. Circumstances too spare to affiliate the defendant to the forum state sufficiently to support long-arm jurisdiction over the defendants person are also inadequate to support seizure of the defendants assets fortuitously found within the state. Shaffer v. Heitner Committee Notes on Rules2000 Amendment Paragraph (2)(B) is added to Rule 4(i) to require service on the United States when a United States officer or employee is sued in an individual capacity for acts or omissions occurring in connection with duties performed on behalf of the United States. Decided cases provide uncertain guidance on the question whether the United States must be served in such actions. See Vaccaro v. Dobre Armstrong v. Sears Ecclesiastical Order of the Ism of Am v. Chasin Light v. Wolf see also Simpkins v. District of Columbia Paragraph 2(B) reaches service when an officer or employee of the United States is sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States. This phrase has been chosen as a functional phrase that can be applied without the occasionally distracting associations of such phrases as scope of employment, color of office, or arising out of the employment. Many actions are brought against individual federal officers or employees of the United States for acts or omissions that have no connection whatever to their governmental roles. There is no reason to require service on the United States in these actions. The connection to federal employment that requires service on the United States must be determined as a practical matter, considering whether the individual defendant has reasonable grounds to look to the United States for assistance and whether the United States has reasonable grounds for demanding formal notice of the action. An action against a former officer or employee of the United States is covered by paragraph (2)(B) in the same way as an action against a present officer or employee. Termination of the relationship between the individual defendant and the United States does not reduce the need to serve the United States. Paragraph (3) is amended to ensure that failure to serve the United States in an action governed by paragraph 2(B) does not defeat an action. This protection is adopted because there will be cases in which the plaintiff reasonably fails to appreciate the need to serve the United States. There is no requirement, however, that the plaintiff show that the failure to serve the United States was reasonable. A reasonable time to effect service on the United States must be allowed after the failure is pointed out. An additional change ensures that if the United States or United States attorney is served in an action governed by paragraph 2(A), additional time is to be allowed even though no officer, employee, agency, or corporation of the United States was served. GAP Report Minor changes were made to include Employees in the catchline for subdivision (i), and to add or employee in paragraph 2(A). Although it may seem awkward to think of suit against an employee in an official capacity, there is no clear definition that separates officers from employees for this purpose. The published proposal to amend Rule 12(a)(3) referred to actions against an employee sued in an official capacity, and it seemed better to make the rules parallel by adding employee to Rule 4(i)(2)(A) than by deleting it from Rule 12(a)(3)(A). Committee Notes on Rules2007 Amendment The language of Rule 4 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 4(d)(1)(C) corrects an inadvertent error in former Rule 4(d)(2)(G). The defendant needs two copies of the waiver form, not an extra copy of the notice and request. Rule 4(g) changes infant to minor. Infant in the present rule means minor. Modern word usage suggests that minor will better maintain the intended meaning. The same change from infant to minor is made throughout the rules. In addition, subdivision (f)(3) is added to the description of methods of service that the court may order; the addition ensures the evident intent that the court not order service by means prohibited by international agreement. Rule 4(i)(4) corrects a misleading reference to the plaintiff in former Rule 4(i)(3). A party other than a plaintiff may need a reasonable time to effect service. Rule 4(i)(4) properly covers any party. Former Rule 4(j)(2) refers to service upon an other governmental organization subject to suit. This is changed to any other state-created governmental organization that is subject to suit. The change entrenches the meaning indicated by the caption (Serving a Foreign, State, or Local Government), and the invocation of state law. It excludes any risk that this rule might be read to govern service on a federal agency, or other entities not created by state law. The former provision describing service on interpleader claimants [former subd. (k)(1)(C)] is deleted as redundant in light of the general provision in (k)(1)(C) recognizing personal jurisdiction authorized by a federal statute. Committee Notes on Rules2015 Amendment Subdivision (d) Subdivision (m) Shortening the presumptive time for service will increase the frequency of occasions to extend the time. More time may be needed, for example, when a request to waive service fails, a defendant is difficult to serve, or a marshal is to make service in an in forma pauperis action. The final sentence is amended to make it clear that the reference to Rule 4 in Rule 71.1(d)(3)(A) does not include Rule 4(m). Dismissal under Rule 4(m) for failure to make timely service would be inconsistent with the limits on dismissal established by Rule 71.1(i)(1)(C). Shortening the time to serve under Rule 4(m) means that the time of the notice required by Rule 15(c)(1)(C) for relation back is also shortened. Committee Notes on Rules2016 Amendment Rule 4(m) is amended to correct a possible ambiguity that appears to have generated some confusion in practice. Service in a foreign country often is accomplished by means that require more than the time set by Rule 4(m). This problem is recognized by the two clear exceptions for service on an individual in a foreign country under Rule 4(f) and for service on a foreign state under Rule 4(j)(1). The potential ambiguity arises from the lack of any explicit reference to service on a corporation, partnership, or other unincorporated association. Rule 4(h)(2) provides for service on such defendants at a place outside any judicial district of the United States in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). Invoking service in the manner prescribed by Rule 4(f) could easily be read to mean that service under Rule 4(h)(2) is also service under Rule 4(f). That interpretation is in keeping with the purpose to recognize the delays that often occur in effecting service in a foreign country. But it also is possible to read the words for what they seem to sayservice is under Rule 4(h)(2), albeit in a manner borrowed from almost all, but not quite all, of Rule 4(f). The amendment resolves this possible ambiguity. Committee Notes on Rules2017 Amendment This is a technical amendment that integrates the intended effect of the amendments adopted in 2015 and 2016. Amendment by Public Law 1983Subd. (a). Pub. L. 97462,  2(1) Subd. (c). Pub. L. 97462,  2(2) Service of process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose, except that a subpoena may be served as provided in Rule 45. Special appointments to serve process shall be made freely. Service of process may also be made by a person authorized to serve process in an action brought in the courts of general jurisdiction of the state in which the district court is held or in which service is made. Subd. (d). Pub. L. 97462,  2(3) Subd. (d)(5). Pub. L. 97462,  2(4) Subd. (d)(7). Pub. L. 97462,  2(3)(B) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. Subd. (e). Pub. L. 97462,  2(5) Subd. (g). Pub. L. 97462,  2(6) Subd. (j). Pub. L. 97462,  2(7) Effective Date of 1983 Amendment Amendment by Pub. L. 97462 Jan. 12, 1983 section 4 of Pub. L. 97462 section 2071 of this title Rule 4.1. Serving Other Process (a) In General. Processother than a summons under Rule 4 or a subpoena under Rule 45must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose. It may be served anywhere within the territorial limits of the state where the district court is located and, if authorized by a federal statute, beyond those limits. Proof of service must be made under Rule 4( l (b) Enforcing Orders: Committing for Civil Contempt. An order committing a person for civil contempt of a decree or injunction issued to enforce federal law may be served and enforced in any district. Any other order in a civil-contempt proceeding may be served only in the state where the issuing court is located or elsewhere in the United States within 100 miles from where the order was issued. (As added Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1993 This is a new rule. Its purpose is to separate those few provisions of the former Rule 4 bearing on matters other than service of a summons to allow greater textual clarity in Rule 4. Subdivision (a) contains no new language. Subdivision (b) replaces the final clause of the penultimate sentence of the former subdivision 4(f), a clause added to the rule in 1963. The new rule provides for nationwide service of orders of civil commitment enforcing decrees of injunctions issued to compel compliance with federal law. The rule makes no change in the practice with respect to the enforcement of injunctions or decrees not involving the enforcement of federally-created rights. Service of process is not required to notify a party of a decree or injunction, or of an order that the party show cause why that party should not be held in contempt of such an order. With respect to a party who has once been served with a summons, the service of the decree or injunction itself or of an order to show cause can be made pursuant to Rule 5. Thus, for example, an injunction may be served on a party through that persons attorney. Chagas v. United States Waffenschmidt v. Mackay The new rule does not affect the reach of the court to impose criminal contempt sanctions. Nationwide enforcement of federal decrees and injunctions is already available with respect to criminal contempt: a federal court may effect the arrest of a criminal contemnor anywhere in the United States, 28 U.S.C.  3041, and a contemnor when arrested may be subject to removal to the district in which punishment may be imposed. Fed. R. Crim. P. 40. Thus, the present law permits criminal contempt enforcement against a contemnor wherever that person may be found. The effect of the revision is to provide a choice of civil or criminal contempt sanctions in those situations to which it applies. Contempt proceedings, whether civil or criminal, must be brought in the court that was allegedly defied by a contumacious act. Ex parte Bradley E.g., McCourtney v. United States cert. denied Committee Notes on Rules2007 Amendment The language of Rule 4.1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 5. Serving and Filing Pleadings and Other Papers (a) Service: When Required. (1)  In General. (A) an order stating that service is required; (B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants; (C) a discovery paper required to be served on a party, unless the court orders otherwise; (D) a written motion, except one that may be heard ex parte; and (E) a written notice, appearance, demand, or offer of judgment, or any similar paper. (2)  If a Party Fails to Appear. (3)  Seizing Property. (b) Service: How Made. (1)  Serving an Attorney. (2)  Service in General. (A) handing it to the person; (B) leaving it: (i) at the persons 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 persons dwelling or usual place of abode with someone of suitable age and discretion who resides there; (C) mailing it to the persons last known addressin which event service is complete upon mailing; (D) leaving it with the court clerk if the person has no known address; (E) sending it to a registered user by filing it with the courts electronic-filing system or sending it by other electronic means that the person consented to in writingin either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served; or (F) delivering it by any other means that the person consented to in writingin which event service is complete when the person making service delivers it to the agency designated to make delivery. (3)  Using Court Facilities. Apr. 26, 2018 Dec. 1, 2018 (c) Serving Numerous Defendants. (1)  In General. (A) defendants pleadings and replies to them need not be served on other defendants; (B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and (C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties. (2)  Notifying Parties. (d) Filing. (1) Required Filings; Certificate of Service. (A)  Papers after the Complaint. (B)  Certificate of Service. (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 court order or by local rule. (2)  Nonelectronic Filing. (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. (A)  By a Represented PersonGenerally Required; Exceptions. (B)  By an Unrepresented PersonWhen Allowed or Required. (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. (D)  Same as a Written Paper. (4)  Acceptance by the Clerk. (As amended Jan. 21, 1963 July 1, 1963 Mar. 30, 1970 July 1, 1970 Apr. 29, 1980 Aug. 1, 1980 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 23, 1996 Dec. 1, 1996 Apr. 17, 2000 Dec. 1, 2000 Apr. 23, 2001 Dec. 1, 2001 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1937 Note to Subdivisions (a) and (b) Note to Subdivision (d) Notes of Advisory Committee on Rules1963 Amendment The words affected thereby, stricken out by the amendment, introduced a problem of interpretation. See 1 Barron & Holtzoff, Federal Practice & Procedure As to the method of serving papers upon a party whose address is unknown, see Rule 5(b). Notes of Advisory Committee on Rules1970 Amendment The amendment makes clear that all papers relating to discovery which are required to be served on any party must be served on all parties, unless the court orders otherwise. The present language expressly includes notices and demands, but it is not explicit as to answers or responses as provided in Rules 33, 34, and 36. Discovery papers may be voluminous or the parties numerous, and the court is empowered to vary the requirement if in a given case it proves needlessly onerous. In actions begun by seizure of property, service will at times have to be made before the absent owner of the property has filed an appearance. For example, a prompt deposition may be needed in a maritime action in rem. See Rules 30(a) and 30(b)(2) and the related notes. A provision is added authorizing service on the person having custody or possession of the property at the time of its seizure. Notes of Advisory Committee on Rules1980 Amendment Subdivision (d) Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment Subdivision (d) Having such information on file may be useful for many purposes, including proof of service if an issue arises concerning the effectiveness of the service. The certificate will generally specify the date as well as the manner of service, but parties employing private delivery services may sometimes be unable to specify the date of delivery. In the latter circumstance, a specification of the date of transmission of the paper to the delivery service may be sufficient for the purposes of this rule. Subdivision (e) pleading and other Several local district rules have directed the office of the clerk to refuse to accept for filing papers not conforming to certain requirements of form imposed by local rules or practice. This is not a suitable role for the office of the clerk, and the practice exposes litigants to the hazards of time bars; for these reasons, such rules are proscribed by this revision. The enforcement of these rules and of the local rules is a role for a judicial officer. A clerk may of course advise a party or counsel that a particular instrument is not in proper form, and may be directed to so inform the court. Notes of Advisory Committee on Rules1993 Amendment This is a technical amendment, using the broader language of Rule 25 of the Federal Rules of Appellate Procedure. The district courtand the bankruptcy court by virtue of a cross-reference in Bankruptcy Rule 7005can, by local rule, permit filing not only by facsimile transmissions but also by other electronic means, subject to standards approved by the Judicial Conference. Notes of Advisory Committee on Rules1996 Amendment The present Rule 5(e) has authorized filing by facsimile or other electronic means on two conditions. The filing must be authorized by local rule. Use of this means of filing must be authorized by the Judicial Conference of the United States and must be consistent with standards established by the Judicial Conference. Attempts to develop Judicial Conference standards have demonstrated the value of several adjustments in the rule. The most significant change discards the requirement that the Judicial Conference authorize local electronic filing rules. As before, each district may decide for itself whether it has the equipment and personnel required to establish electronic filing, but a district that wishes to establish electronic filing need no longer await Judicial Conference action. The role of the Judicial Conference standards is clarified by specifying that the standards are to govern technical matters. Technical standards can provide nationwide uniformity, enabling ready use of electronic filing without pausing to adjust for the otherwise inevitable variations among local rules. Judicial Conference adoption of technical standards should prove superior to specification in these rules. Electronic technology has advanced with great speed. The process of adopting Judicial Conference standards should prove speedier and more flexible in determining the time for the first uniform standards, in adjusting standards at appropriate intervals, and in sparing the Supreme Court and Congress the need to consider technological details. Until Judicial Conference standards are adopted, however, uniformity will occur only to the extent that local rules deliberately seek to copy other local rules. It is anticipated that Judicial Conference standards will govern such technical specifications as data formatting, speed of transmission, means to transmit copies of supporting documents, and security of communication. Perhaps more important, standards must be established to assure proper maintenance and integrity of the record and to provide appropriate access and retrieval mechanisms. Local rules must address these issues until Judicial Conference standards are adopted. The amended rule also makes clear the equality of filing by electronic means with written filings. An electronic filing that complies with the local rule satisfies all requirements for filing on paper, signature, or verification. An electronic filing that otherwise satisfies the requirements of 28 U.S.C.  1746 need not be separately made in writing. Public access to electronic filings is governed by the same rules as govern written filings. The separate reference to filing by facsimile transmission is deleted. Facsimile transmission continues to be included as an electronic means. Committee Notes on Rules2000 Amendment Subdivision (d) Recognizing the costs imposed on parties and courts by required filing of discovery materials that are never used in an action, Rule 5(d) was amended in 1980 to authorize court orders that excuse filing. Since then, many districts have adopted local rules that excuse or forbid filing. In 1989 the Judicial Conference Local Rules Project concluded that these local rules were inconsistent with Rule 5(d), but urged the Advisory Committee to consider amending the rule. Local Rules Project Although this amendment is based on widespread experience with local rules, and confirms the results directed by these local rules, it is designed to supersede and invalidate local rules. There is no apparent reason to have different filing rules in different districts. Even if districts vary in present capacities to store filed materials that are not used in an action, there is little reason to continue expending court resources for this purpose. These costs and burdens would likely change as parties make increased use of audio- and videotaped depositions. Equipment to facilitate review and reproduction of such discovery materials may prove costly to acquire, maintain, and operate. The amended rule provides that discovery materials and disclosures under Rule 26(a)(1) and (a)(2) must not be filed until they are used in the proceeding. This phrase is meant to refer to proceedings in court. This filing requirement is not triggered by use of discovery materials in other discovery activities, such as depositions. In connection with proceedings in court, however, the rule is to be interpreted broadly; any use of discovery materials in court in connection with a motion, a pretrial conference under Rule 16, or otherwise, should be interpreted as use in the proceeding. Once discovery or disclosure materials are used in the proceeding, the filing requirements of Rule 5(d) should apply to them. But because the filing requirement applies only with regard to materials that are used, only those parts of voluminous materials that are actually used need be filed. Any party would be free to file other pertinent portions of materials that are so used. See cf Shall is replaced by must under the program to conform amended rules to current style conventions when there is no ambiguity. GAP Report Committee Notes On Rules2001 Amendment Rule 5(b) is restyled. Rule 5(b)(1) makes it clear that the provision for service on a partys attorney applies only to service made under Rules 5(a) and 77(d). Service under Rules 4, 4.1, 45(b), and 71A(d)(3)as well as rules that invoke those rulesmust be made as provided in those rules. Subparagraphs (A), (B), and (C) of Rule 5(b)(2) carry forward the method-of-service provisions of former Rule 5(b). Subparagraph (D) of Rule 5(b)(2) is new. It authorizes service by electronic means or any other means, but only if consent is obtained from the person served. The consent must be express, and cannot be implied from conduct. Early experience with electronic filing as authorized by Rule 5(d) is positive, supporting service by electronic means as well. Consent is required, however, because it is not yet possible to assume universal entry into the world of electronic communication. Subparagraph (D) also authorizes service by nonelectronic means. The Rule 5(b)(2)(B) provision making mail service complete on mailing is extended in subparagraph (D) to make service by electronic means complete on transmission; transmission is effected when the sender does the last act that must be performed by the sender. Service by other agencies is complete on delivery to the designated agency. Finally, subparagraph (D) authorizes adoption of local rules providing for service through the court. Electronic case filing systems will come to include the capacity to make service by using the courts facilities to transmit all documents filed in the case. It may prove most efficient to establish an environment in which a party can file with the court, making use of the courts transmission facilities to serve the filed paper on all other parties. Transmission might be by such means as direct transmission of the paper, or by transmission of a notice of filing that includes an electronic link for direct access to the paper. Because service is under subparagraph (D), consent must be obtained from the persons served. Consent to service under Rule 5(b)(2)(D) must be in writing, which can be provided by electronic means. Parties are encouraged to specify the scope and duration of the consent. The specification should include at least the persons to whom service should be made, the appropriate address or location for such servicesuch as the e-mail address or facsimile machine number, and the format to be used for attachments. A district court may establish a registry or other facility that allows advance consent to service by specified means for future actions. Rule 6(e) is amended to allow additional time to respond when service is made under Rule 5(b)(2)(D). The additional time does not relieve a party who consents to service under Rule 5(b)(2)(D) of the responsibilities to monitor the facility designated for receiving service and to provide prompt notice of any address change. Paragraph (3) addresses a question that may arise from a literal reading of the provision that service by electronic means is complete on transmission. Electronic communication is rapidly improving, but lawyers report continuing failures of transmission, particularly with respect to attachments. Ordinarily the risk of non-receipt falls on the person being served, who has consented to this form of service. But the risk should not extend to situations in which the person attempting service learns that the attempted service in fact did not reach the person to be served. Given actual knowledge that the attempt failed, service is not effected. The person attempting service must either try again or show circumstances that justify dispensing with service. Paragraph (3) does not address the similar questions that may arise when a person attempting service learns that service by means other than electronic means in fact did not reach the person to be served. Case law provides few illustrations of circumstances in which a person attempting service actually knows that the attempt failed but seeks to act as if service had been made. This negative history suggests there is no need to address these problems in Rule 5(b)(3). This silence does not imply any view on these issues, nor on the circumstances that justify various forms of judicial action even though service has not been made. Changes Made After Publication and Comments Rule 5(b)(3) is new. The published proposal did not address the question of failed service in the text of the rule. Instead, the Committee Note included this statement: As with other modes of service, however, actual notice that the transmission was not received defeats the presumption of receipt that arises from the provision that service is complete on transmission. The sender must take additional steps to effect service. Service by other agencies is complete on delivery to the designated agency. The addition of paragraph (3) was prompted by consideration of the draft Appellate Rule 25(c) that was prepared for the meeting of the Appellate Rules Advisory Committee. This draft provided: Service by electronic means is complete on transmission, unless the party making service is notified that the paper was not received. Although Appellate Rule 25(c) is being prepared for publication and comment, while Civil Rule 5(b) has been published and otherwise is ready to recommend for adoption, it seemed desirable to achieve some parallel between the two rules. The draft Rule 5(b)(3) submitted for consideration by the Advisory Committee covered all means of service except for leaving a copy with the clerk of the court when the person to be served has no known address. It was not limited to electronic service for fear that a provision limited to electronic service might generate unintended negative implications as to service by other means, particularly mail. This concern was strengthened by a small number of opinions that say that service by mail is effective, because complete on mailing, even when the person making service has prompt actual notice that the mail was not delivered. The Advisory Committee voted to limit Rule 5(b)(3) to service by electronic means because this means of service is relatively new, and seems likely to miscarry more frequently than service by post. It was suggested during the Advisory Committee meeting that the question of negative implication could be addressed in the Committee Note. There was little discussion of this possibility. The Committee Note submitted above includes a no negative implications paragraph prepared by the Reporter for consideration by the Standing Committee. The Advisory Committee did not consider at all a question that was framed during the later meeting of the Appellate Rules Advisory Committee. As approved by the Advisory Committee, Rule 5(b)(3) defeats service by electronic means if the party making service learns that the attempted service did not reach the person to be served. It says nothing about the time relevant to learning of the failure. The omission may seem glaring. Curing the omission, however, requires selection of a time. As revised, proposed Appellate Rule 25(c) requires that the party making service learn of the failure within three calendar days. The Appellate Rules Advisory Committee will have the luxury of public comment and another year to consider the desirability of this short period. If Civil Rule 5(b) is to be recommended for adoption now, no such luxury is available. This issue deserves careful consideration by the Standing Committee. Several changes are made in the Committee Note. (1) It requires that consent be express, and cannot be implied from conduct. This addition reflects a more general concern stimulated by a reported ruling that an e-mail address on a firms letterhead implied consent to email service. (2) The paragraph discussing service through the courts facilities is expanded by describing alternative methods, including an electronic link. (3) There is a new paragraph that states that the requirement of written consent can be satisfied by electronic means, and that suggests matters that should be addressed by the consent. (4) A paragraph is added to note the additional response time provided by amended Rule 6(e). (5) The final two paragraphs address newly added Rule 5(b)(3). The first explains the rule that electronic service is not effective if the person making service learns that it did not reach the person to be served. The second paragraph seeks to defeat any negative implications that might arise from limiting Rule 5(b)(3) to electronic service, not mail, not other means consented to such as commercial express service, and not service on another person on behalf of the person to be served. Rule 6(e) The Advisory Committee recommended that no change be made in Civil Rule 6(e) to reflect the provisions of Civil Rule 5(b)(2)(D) that, with the consent of the person to be served, would allow service by electronic or other means. Absent change, service by these means would not affect the time for acting in response to the paper served. Comment was requested, however, on the alternative that would allow an additional 3 days to respond. The alternative Rule 6(e) amendments are cast in a form that permits ready incorporation in the Bankruptcy Rules. Several of the comments suggest that the added three days should be provided. Electronic transmission is not always instantaneous, and may fail for any of a number of reasons. It may take three days to arrange for transmission in readable form. Providing added time to respond will not discourage people from asking for consent to electronic transmission, and may encourage people to give consent. The more who consent, the quicker will come the improvements that will make electronic service ever more attractive. Consistency with the Bankruptcy Rules will be a good thing, and the Bankruptcy Rules Advisory Committee believes the additional three days should be allowed. Committee Notes on Rules2006 Amendment Amended Rule 5(e) acknowledges that many courts have required electronic filing by means of a standing order, procedures manual, or local rule. These local practices reflect the advantages that courts and most litigants realize from electronic filing. Courts that mandate electronic filing recognize the need to make exceptions when requiring electronic filing imposes a hardship on a party. Under amended Rule 5(e), a local rule that requires electronic filing must include reasonable exceptions, but Rule 5(e) does not define the scope of those exceptions. Experience with the local rules that have been adopted and that will emerge will aid in drafting new local rules and will facilitate gradual convergence on uniform exceptions, whether in local rules or in an amended Rule 5(e). Changes Made after Publication and Comment Committee Notes on Rules2007 Amendment The language of Rule 5 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 5(a)(1)(E) omits the former reference to a designation of record on appeal. Appellate Rule 10 is a self-contained provision for the record on appeal, and provides for service. Former Rule 5(b)(2)(D) literally provided that a local rule may authorize use of the courts transmission facilities to make service by non-electronic means agreed to by the parties. That was not intended. Rule 5(b)(3) restores the intended meaningcourt transmission facilities can be used only for service by electronic means. Rule 5(d)(2)(B) provides that a judge may accept a paper for filing, replacing the reference in former Rule 5(e) to the judge. Some courts do not assign a designated judge to each case, and it may be important to have another judge accept a paper for filing even when a case is on the individual docket of a particular judge. The ministerial acts of accepting the paper, noting the time, and transmitting the paper to the court clerk do not interfere with the assigned judges authority over the action. Committee Notes on Rules2018 Amendment Subdivision (b). The amended rule recognizes electronic service through the courts transmission facilities as to any registered user. A court may choose to allow registration only with the courts permission. But a party who registers will be subject to service through the courts facilities unless the court provides otherwise. With the consent of the person served, electronic service also may be made by means that do not utilize the courts facilities. Consent can be limited to service at a prescribed address or in a specified form, and may be limited by other conditions. Service is complete when a person files the paper with the courts electronic-filing system for transmission to a registered user, or when one person sends it to another person by other electronic means that the other person has consented to in writing. But service is not effective if the person who filed with the court or the person who sent by other agreed-upon electronic means learns that the paper did not reach the person to be served. The rule does not make the court responsible for notifying a person who filed the paper with the courts electronic-filing system that an attempted transmission by the courts system failed. But a filer who learns that the transmission failed is responsible for making effective service. Because Rule 5(b)(2)(E) now authorizes service through the courts facilities as a uniform national practice, Rule 5(b)(3) is abrogated. It is no longer necessary to rely on local rules to authorize such service. Subdivision (d). Under amended Rule 5(d)(1)(B), a certificate of service is not required when a paper is served by filing it with the courts electronic-filing system. When service is not made by filing with the courts electronic-filing system, a certificate of service must be filed with the paper or within a reasonable time after service, and should specify the date as well as the manner of service. For papers that are required to be served but must not be filed until they are used in the proceeding or the court orders filing, the certificate need not be filed until the paper is filed, unless filing is required by local rule or court order. Amended Rule 5(d)(3) recognizes increased reliance on electronic filing. Most districts have adopted local rules that require electronic filing, and allow reasonable exceptions as required by the former rule. The time has come to seize the advantages of electronic filing by making it generally mandatory in all districts for a person represented by an attorney. But exceptions continue to be available. Nonelectronic filing must be allowed for good cause. And a local rule may allow or require nonelectronic filing for other reasons. Filings by a person proceeding without an attorney are treated separately. It is not yet possible to rely on an assumption that pro se litigants are generally able to seize the advantages of electronic filing. Encounters with the courts system may prove overwhelming to some. Attempts to work within the system may generate substantial burdens on a pro se party, on other parties, and on the court. Rather than mandate electronic filing, filing by pro se litigants is left for governing by local rules or court order. Efficiently handled electronic filing works to the advantage of all parties and the court. Many courts now allow electronic filing by pro se litigants with the courts permission. Such approaches may expand with growing experience in the courts, along with the greater availability of the systems required for electronic filing and the increasing familiarity of most people with electronic communication. Room is also left for a court to require electronic filing by a pro se litigant by court order or by local rule. Care should be taken to ensure that an order to file electronically does not impede access to the court, and reasonable exceptions must be included in a local rule that requires electronic filing by a pro se litigant. In the beginning, this authority is likely to be exercised only to support special programs, such as one requiring e-filing in collateral proceedings by state prisoners. A filing made through a persons electronic-filing account and authorized by that person, together with that persons name on a signature block, constitutes the persons signature. Rule 5.1. Constitutional Challenge to a StatuteNotice, Certification, and Intervention (a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly: (1) file a notice of constitutional question stating the question and identifying the paper that raises it, if: (A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or (B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and (2) serve the notice and paper on the Attorney General of the United States if a federal statute is questionedor on the state attorney general if a state statute is questionedeither by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose. (b) Certification by the Court. The court must, under 28 U.S.C.  2403, certify to the appropriate attorney general that a statute has been questioned. (c) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional. (d) No Forfeiture. A partys failure to file and serve the notice, or the courts failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted. (As added Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007  Committee Notes on Rules2006 Rule 5.1 implements 28 U.S.C.  2403, replacing the final three sentences of Rule 24(c). New Rule 5.1 requires a party that files a pleading, written motion, or other paper drawing in question the constitutionality of a federal or state statute to file a notice of constitutional question and serve it on the United States Attorney General or state attorney general. The party must promptly file and serve the notice of constitutional question. This notice requirement supplements the courts duty to certify a constitutional challenge to the United States Attorney General or state attorney general. The notice of constitutional question will ensure that the attorney general is notified of constitutional challenges and has an opportunity to exercise the statutory right to intervene at the earliest possible point in the litigation. The courts certification obligation remains, and is the only notice when the constitutionality of a federal or state statute is drawn in question by means other than a partys pleading, written motion, or other paper. Moving the notice and certification provisions from Rule 24(c) to a new rule is designed to attract the parties attention to these provisions by locating them in the vicinity of the rules that require notice by service and pleading. Rule 5.1 goes beyond the requirements of  2403 and the former Rule 24(c) provisions by requiring notice and certification of a constitutional challenge to any federal or state statute, not only those affecting the public interest. It is better to assure, through notice, that the attorney general is able to determine whether to seek intervention on the ground that the act or statute affects a public interest. Rule 5.1 refers to a federal statute, rather than the  2403 reference to an Act of Congress, to maintain consistency in the Civil Rules vocabulary. In Rule 5.1 statute means any congressional enactment that would qualify as an Act of Congress. Unless the court sets a later time, the 60-day period for intervention runs from the time a party files a notice of constitutional question or from the time the court certifies a constitutional challenge, whichever is earlier. Rule 5.1(a) directs that a party promptly serve the notice of constitutional question. The court may extend the 60-[day] period on its own or on motion. One occasion for extension may arise if the court certifies a challenge under  2403 after a party files a notice of constitutional question. Pretrial activities may continue without interruption during the intervention period, and the court retains authority to grant interlocutory relief. The court may reject a constitutional challenge to a statute at any time. But the court may not enter a final judgment holding a statute unconstitutional before the attorney general has responded or the intervention period has expired without response. This rule does not displace any of the statutory or rule procedures that permit dismissal of all or part of an actionincluding a constitutional challengeat any time, even before service of process. Changes Made After Publication and Comment The Advisory Committee debated at length the question whether the party who files a notice of constitutional question should be required to serve the notice on the appropriate attorney general. The service requirement was retained, but the time for intervention was set to run from the earlier of the notice filing or the courts certification. The definition of the time to intervene was changed in tandem with this change. The published rule directed the court to set an intervention time not less than 60 days from the courts certification. This was changed to set a 60-day period in the rule [u]nless the court sets a later time. The Committee Note points out that the court may extend the 60-day period on its own or on motion, and recognizes that an occasion for extension may arise if the 60-day period begins with the filing of the notice of constitutional question. The method of serving the notice of constitutional question set by the published rule called for serving the United States Attorney General under Civil Rule 4, and for serving a state attorney general by certified or registered mail. This proposal has been changed to provide service in all cases either by certified or registered mail or by sending the Notice to an electronic address designated by the attorney general for this purpose. The rule proposed for adoption brings into subdivision (c) matters that were stated in the published Committee Note but not in the rule text. The court may reject a constitutional challenge at any time, but may not enter a final judgment holding a statute unconstitutional before the time set to intervene expires. The published rule would have required notice and certification when an officer of the United States or a state brings suit in an official capacity. There is no need for notice in such circumstances. The words is sued were deleted to correct this oversight. Several style changes were made at the Style Subcommittees suggestion. One change that straddles the line between substance and style appears in Rule 5.1(d). The published version adopted the language of present Rule 24(c): failure to comply with the Notice or certification requirements does not forfeit a constitutional right. This expression is changed to claim or defense from concern that reference to a right may invite confusion of the no-forfeiture provision with the merits of the claim or defense that is not forfeited. Committee Notes on Rules2007 Amendment The language of Rule 5.1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 5.2. Privacy Protection For Filings Made with the Court (a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individuals social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only: (1) the last four digits of the social-security number and taxpayer-identification number; (2) the year of the individuals birth; (3) the minors initials; and (4) the last four digits of the financial-account number. (b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the following: (1) a financial-account number that identifies the property allegedly subject to forfeiture in a forfeiture proceeding; (2) the record of an administrative or agency proceeding; (3) the official record of a state-court proceeding; (4) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; (5) a filing covered by Rule 5.2(c) or (d); and (6) a pro se filing in an action brought under 28 U.S.C.  2241, 2254, or 2255. (c) Limitations on Remote Access to Electronic Files; Social-Security Appeals and Immigration Cases. Unless the court orders otherwise, in an action for benefits under the Social Security Act, and in an action or proceeding relating to an order of removal, to relief from removal, or to immigration benefits or detention, access to an electronic file is authorized as follows: (1) the parties and their attorneys may have remote electronic access to any part of the case file, including the administrative record; (2) any other person may have electronic access to the full record at the courthouse, but may have remote electronic access only to: (A) the docket maintained by the court; and (B) an opinion, order, judgment, or other disposition of the court, but not any other part of the case file or the administrative record. (d) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record. (e) Protective Orders. For good cause, the court may by order in a case: (1) require redaction of additional information; or (2) limit or prohibit a nonpartys remote electronic access to a document filed with the court. (f) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record. (g) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. (h) Waiver of Protection of Identifiers. A person waives the protection of Rule 5.2(a) as to the persons own information by filing it without redaction and not under seal. (As added Apr. 30, 2007 Dec. 1, 2007  Committee Notes on Rules2007 The rule is adopted in compliance with section 205(c)(3) of the E-Government Act of 2002, Public Law 107347 The rule is derived from and implements the policy adopted by the Judicial Conference in September 2001 to address the privacy concerns resulting from public access to electronic case files. See While providing for the public filing of some information, such as the last four digits of an account number, the rule does not intend to establish a presumption that this information never could or should be protected. For example, it may well be necessary in individual cases to prevent remote access by nonparties to any part of an account number or social security number. It may also be necessary to protect information not covered by the redaction requirementsuch as drivers license numbers and alien registration numbersin a particular case. In such cases, protection may be sought under subdivision (d) or (e). Moreover, the Rule does not affect the protection available under other rules, such as Civil Rules 16 and 26(c), or under other sources of protective authority. Parties must remember that any personal information not otherwise protected by sealing or redaction will be made available over the internet. Counsel should notify clients of this fact so that an informed decision may be made on what information is to be included in a document filed with the court. The clerk is not required to review documents filed with the court for compliance with this rule. The responsibility to redact filings rests with counsel and the party or nonparty making the filing. Subdivision (c) provides for limited public access in Social Security cases and immigration cases. Those actions are entitled to special treatment due to the prevalence of sensitive information and the volume of filings. Remote electronic access by nonparties is limited to the docket and the written dispositions of the court unless the court orders otherwise. The rule contemplates, however, that nonparties can obtain full access to the case file at the courthouse, including access through the courts public computer terminal. Subdivision (d) reflects the interplay between redaction and filing under seal. It does not limit or expand the judicially developed rules that govern sealing. But it does reflect the possibility that redaction may provide an alternative to sealing. Subdivision (e) provides that the court can by order in a particular case for good cause require more extensive redaction than otherwise required by the Rule. Nothing in this subdivision is intended to affect the limitations on sealing that are otherwise applicable to the court. Subdivision (f) allows a person who makes a redacted filing to file an unredacted document under seal. This provision is derived from section 205(c)(3)(iv) of the E-Government Act. Subdivision (g) allows the option to file a register of redacted information. This provision is derived from section 205(c)(3)(v) of the E-Government Act, as amended in 2004. In accordance with the E-Government Act, subdivision (g) refers to redacted information. The term redacted is intended to govern a filing that is prepared with abbreviated identifiers in the first instance, as well as a filing in which a personal identifier is edited after its preparation. Subdivision (h) allows a person to waive the protections of the rule as to that persons own personal information by filing it unsealed and in unredacted form. One may wish to waive the protection if it is determined that the costs of redaction outweigh the benefits to privacy. If a person files an unredacted identifier by mistake, that person may seek relief from the court. Trial exhibits are subject to the redaction requirements of Rule 5.2 to the extent they are filed with the court. Trial exhibits that are not initially filed with the court must be redacted in accordance with the rule if and when they are filed as part of an appeal or for other reasons. Changes Made After Publication and Comment Subdivision (a) was amended to incorporate a suggestion from the Federal Magistrate Judges Association that the rule text state that the responsibility to redact filings rests on the filer, not the court clerk. As published, subdivision (b)(6) exempted from redaction all filings in habeas corpus proceedings under 28 U.S.C.  2241, 2254, or 2255. The exemption is revised to apply only to pro se filings. A petitioner represented by counsel, and respondents represented by counsel, must redact under Rule 5.2(a). Subdivision (e) was published with a standard for protective orders, referring to a need to protect private or sensitive information not otherwise protected by Rule 5.2(a). This standard has been replaced by a general reference to good cause. Rule 6. Computing and Extending Time; Time for Motion Papers (a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time. (1)  Period Stated in Days or a Longer Unit. (A) exclude the day of the event that triggers the period; (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (2)  Period Stated in Hours. (A) begin counting immediately on the occurrence of the event that triggers the period; (B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and (C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday. (3)  Inaccessibility of the Clerks Office. (A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or (B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday. (4)  Last Day Defined. (A) for electronic filing, at midnight in the courts time zone; and (B) for filing by other means, when the clerks office is scheduled to close. (5)  Next Day Defined. (6)  Legal Holiday Defined. (A) the day set aside by statute for observing New Years Day, Martin Luther King Jr.s Birthday, Washingtons Birthday, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, or Christmas Day; (B) any day declared a holiday by the President or Congress; and (C) for periods that are measured after an event, any other day declared a holiday by the state where the district court is located. (b) Extending Time. (1)  In General. (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect. (2)  Exceptions. (c) Motions, Notices of Hearing, and Affidavits. (1)  In General. (A) when the motion may be heard ex parte; (B) when these rules set a different time; or (C) when a court orderwhich a party may, for good cause, apply for ex partesets a different time. (2)  Supporting Affidavit. (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), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a). (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Mar. 1, 1971 July 1, 1971 Apr. 28, 1983 Aug. 1, 1983 Apr. 29, 1985 Aug. 1, 1985 Mar. 2, 1987 Aug. 1, 1987 Apr. 26, 1999 Dec. 1, 1999 Apr. 23, 2001 Dec. 1, 2001 Apr. 25, 2005 Dec. 1, 2005 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2016 Dec. 1, 2016 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1937 Note to Subdivisions (a) and (b) Note to Subdivision (c) Rules of the United States District Court of Minnesota Note to Subdivision (d) Notes of Advisory Committee on Rules1946 Amendment Subdivision (b) The question to be met under Rule 6(b) is: how far should the desire to allow correction of judgments be allowed to postpone their finality? The rules contain a number of provisions permitting the vacation or modification of judgments on various grounds. Each of these rules contains express time limits on the motions for granting of relief. Rule 6(b) is a rule of general application giving wide discretion to the court to enlarge these time limits or revive them after they have expired, the only exceptions stated in the original rule being a prohibition against enlarging the time specified in Rule 59(b) and (d) for making motions for or granting new trials, and a prohibition against enlarging the time fixed by law for taking an appeal. It should also be noted that Rule 6(b) itself contains no limitation of time within which the court may exercise its discretion, and since the expiration of the term does not end its power, there is now no time limit on the exercise of its discretion under Rule 6(b). Decisions of lower federal courts suggest that some of the rules containing time limits which may be set aside under Rule 6(b) are Rules 25, 50(b), 52(b), 60(b), and 73(g). In a number of cases the effect of Rule 6(b) on the time limitations of these rules has been considered. Certainly the rule is susceptible of the interpretation that the court is given the power in its discretion to relieve a party from failure to act within the times specified in any of these other rules, with only the exceptions stated in Rule 6(b), and in some cases the rule has been so construed. With regard to Rule 25(a) for substitution, it was held in Anderson v. Brady Anderson v. Yungkau As to Rules 50(b) for judgments notwithstanding the verdict and 52(b) for amendment of findings and vacation of judgment, it was recognized in Leishman v. Associated Wholesale Electric Co Coca-Cola v. Busch As to Rule 59 on motions for a new trial, it has been settled that the time limits in Rule 59(b) and (d) for making motions for or granting new trial could not be set aside under Rule 6(b), because Rule 6(b) expressly refers to Rule 59, and forbids it. See Safeway Stores, Inc. v. Coe Jusino v. Morales & Tio Coca-Cola Co. v. Busch Peterson v. Chicago Great Western Ry. Co Leishman v. Associated Wholesale Electric Co As to Rule 60(b) for relief from a judgment, it was held in Schram v. OConnor Wallace v. United States Reed v. South Atlantic Steamship Co. of Del As to Rule 73(g), fixing the time for docketing an appeal, it was held in Ainsworth v. Gill Glass & Fixture Co Mutual Benefit Health & Accident Assn v. Snyder Burke v. Canfield The amendment of Rule 6(b) now proposed is based on the view that there should be a definite point where it can be said a judgment is final; that the right method of dealing with the problem is to list in Rule 6(b) the various other rules whose time limits may not be set aside, and then, if the time limit in any of those other rules is too short, to amend that other rule to give a longer time. The further argument is that Rule 6(c) abolished the long standing device to produce finality in judgments through expiration of the term, and since that limitation on the jurisdiction of courts to set aside their own judgments has been removed by Rule 6(c), some other limitation must be substituted or judgments never can be said to be final. In this connection reference is made to the established rule that if a motion for new trial is seasonably made, the mere making or pendency of the motion destroys the finality of the judgment, and even though the motion is ultimately denied, the full time for appeal starts anew from the date of denial. Also, a motion to amend the findings under Rule 52(b) has the same effect on the time for appeal. Leishman v. Associated Wholesale Electric Co As to Rule 25 on substitution, while finality is not involved, the limit there fixed should be controlling. That rule, as amended, gives the court power, upon showing of a reasonable excuse, to permit substitution after the expiration of the two-year period. As to Rule 73(g), it is believed that the conflict in decisions should be resolved and not left to further litigation, and that the rule should be listed as one whose limitation may not be set aside under Rule 6(b). As to Rule 59(c), fixing the time for serving affidavits on motion for new trial, it is believed that the court should have authority under Rule 6(b) to enlarge the time, because, once the motion for new trial is made, the judgment no longer has finality, and the extension of time for affidavits thus does not of itself disturb finality. Other changes proposed in Rule 6(b) are merely clarifying and conforming. Thus request is substituted for application in clause (1) because an application is defined as a motion under Rule 7(b). The phrase extend the time is substituted for enlarge the period because the former is a more suitable expression and relates more clearly to both clauses (1) and (2). The final phrase in Rule 6(b), or the period for taking an appeal as provided by law, is deleted and a reference to Rule 73(a) inserted, since it is proposed to state in that rule the time for appeal to a circuit court of appeals, which is the only appeal governed by the Federal Rules, and allows an extension of time. See Rule 72. Subdivision (c) Hill v. Hawes Boaz v. Mutual Life Ins. Co. of New York Bucy v. Nevada Construction Co Notes of Advisory Committee on Rules1963 Amendment Subdivision (a) The wording of the first sentence of Rule 6(a) is clarified and the subdivision is made expressly applicable to computing periods of time set forth in local rules. Saturday is to be treated in the same way as Sunday or a legal holiday in that it is not to be included when it falls on the last day of a computed period, nor counted as an intermediate day when the period is less than 7 days. Legal holiday is defined for purposes of this subdivision and amended Rule 77(c). Compare the definition of holiday in 11 U.S.C.  1(18); also 5 U.S.C.  86a; Executive Order No. 10358, Observance of Holidays, June 9, 1952 With Saturdays and State holidays made dies non in certain cases by the amended subdivision, computation of the usual 5day notice of motion or the 2day notice to dissolve or modify a temporary restraining order may work out so as to cause embarrassing delay in urgent cases. The delay can be obviated by applying to the court to shorten the time, see Rules 6(d) and 65(b). Subdivision (b) Notes of Advisory Committee on Rules1968 Amendment The amendment eliminates the references to Rule 73, which is to be abrogated. P. L. 88139,  1, 77 Stat. 248 October 16, 1963 Notes of Advisory Committee on Rules1971 Amendment The amendment adds Columbus Day to the list of legal holidays to conform the subdivision to the Act of June 28, 1968 82 Stat. 250 January 1, 1971 The Act, which amended Title 5, U.S.C.,  6103(a), changes the day on which certain holidays are to be observed. Washingtons Birthday, Memorial Day and Veterans Day are to be observed on the third Monday in February, the last Monday in May and the fourth Monday in October, respectively, rather than, as heretofore, on February 22, May 30, and November 11, respectively. Columbus Day is to be observed on the second Monday in October. New Years Day, Independence Day, Thanksgiving Day and Christmas continue to be observed on the traditional days. Notes of Advisory Committee on Rules1983 Amendment Subdivision (b) Notes of Advisory Committee on Rules1985 Amendment Rule 6(a) is amended to acknowledge that weather conditions or other events may render the clerks office inaccessible one or more days. Parties who are obliged to file something with the court during that period should not be penalized if they cannot do so. The amendment conforms to changes made in Federal Rule of Criminal Procedure 45(a), effective August 1, 1982 The Rule also is amended to extend the exclusion of intermediate Saturdays, Sundays, and legal holidays to the computation of time periods less than 11 days. Under the current version of the Rule, parties bringing motions under rules with 10-day periods could have as few as 5 working days to prepare their motions. This hardship would be especially acute in the case of Rules 50(b) and (c)(2), 52(b), and 59(b), (d), and (e), which may not be enlarged at the discretion of the court. See Rule 6(b). If the exclusion of Saturdays, Sundays, and legal holidays will operate to cause excessive delay in urgent cases, the delay can be obviated by applying to the court to shorten the time, See Rule 6(b). The Birthday of Martin Luther King, Jr., which becomes a legal holiday effective in 1986, has been added to the list of legal holidays enumerated in the Rule. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules1999 Amendment The reference to Rule 74(a) is stricken from the catalogue of time periods that cannot be extended by the district court. The change reflects the 1997 abrogation of Rule 74(a). Committee Notes on Rules2001 Amendment The additional three days provided by Rule 6(e) is extended to the means of service authorized by the new paragraph (D) added to Rule 5(b), includingwith the consent of the person servedservice by electronic or other means. The three-day addition is provided as well for service on a person with no known address by leaving a copy with the clerk of the court. Changes Made After Publication and Comments Committee Notes on Rules2005 Amendment Rule 6(e) is amended to remove any doubt as to the method for extending the time to respond after service by mail, leaving with the clerk of court, electronic means, or other means consented to by the party served. Three days are added after the prescribed period otherwise expires under Rule 6(a). Intermediate Saturdays, Sundays, and legal holidays are included in counting these added three days. If the third day is a Saturday, Sunday, or legal holiday, the last day to act is the next day that is not a Saturday, Sunday, or legal holiday. The effect of invoking the day when the prescribed period would otherwise expire under Rule 6(a) can be illustrated by assuming that the thirtieth day of a thirty-day period is a Saturday. Under Rule 6(a) the period expires on the next day that is not a Sunday or legal holiday. If the following Monday is a legal holiday, under Rule 6(a) the period expires on Tuesday. Three days are then addedWednesday, Thursday, and Friday as the third and final day to act. If the period prescribed expires on a Friday, the three added days are Saturday, Sunday, and Monday, which is the third and final day to act unless it is a legal holiday. If Monday is a legal holiday, the next day that is not a legal holiday is the third and final day to act. Application of Rule 6(e) to a period that is less than eleven days can be illustrated by a paper that is served by mailing on a Friday. If ten days are allowed to respond, intermediate Saturdays, Sundays, and legal holidays are excluded in determining when the period expires under Rule 6(a). If there is no legal holiday, the period expires on the Friday two weeks after the paper was mailed. The three added Rule 6(e) days are Saturday, Sunday, and Monday, which is the third and final day to act unless it is a legal holiday. If Monday is a legal holiday, the next day that is not a legal holiday is the final day to act. Changes Made After Publication and Comment Committee Notes on Rules2007 Amendment The language of Rule 6 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Subdivision (a). The time-computation provisions of subdivision (a) apply only when a time period must be computed. They do not apply when a fixed time to act is set. The amendments thus carry forward the approach taken in Violette v. P.A. Days, Inc. In re American Healthcare Management, Inc. November 1, 2007 Subdivision (a) does not apply when computing a time period set by a statute if the statute specifies a method of computing time. See, e.g. Subdivision (a)(1). See, e.g. Under former Rule 6(a), a period of 11 days or more was computed differently than a period of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in computing the longer periods, but excluded in computing the shorter periods. Former Rule 6(a) thus made computing deadlines unnecessarily complicated and led to counterintuitive results. For example, a 10-day period and a 14-day period that started on the same day usually ended on the same dayand the 10-day period not infrequently ended later than the 14-day period. See Miltimore Sales, Inc. v. Intl Rectifier, Inc. Under new subdivision (a)(1), all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other daysincluding intermediate Saturdays, Sundays, and legal holidaysare counted, with only one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday. An illustration is provided below in the discussion of subdivision (a)(5). Subdivision (a)(3) addresses filing deadlines that expire on a day when the clerks office is inaccessible. Where subdivision (a) formerly referred to the act, event, or default that triggers the deadline, new subdivision (a) refers simply to the event that triggers the deadline; this change in terminology is adopted for brevity and simplicity, and is not intended to change meaning. Periods previously expressed as less than 11 days will be shortened as a practical matter by the decision to count intermediate Saturdays, Sundays, and legal holidays in computing all periods. Many of those periods have been lengthened to compensate for the change. See, e.g. Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation methodtwo Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the periodthe 14th day after a Monday, for example, is a Monday. This advantage of using week-long periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods. Thirty-day and longer periods, however, were generally retained without change. Subdivision (a)(2). Under subdivision (a)(2), a deadline stated in hours starts to run immediately on the occurrence of the event that triggers the deadline. The deadline generally ends when the time expires. If, however, the time period expires at a specific time (say, 2:17 p.m.) on a Saturday, Sunday, or legal holiday, then the deadline is extended to the same time (2:17 p.m.) on the next day that is not a Saturday, Sunday, or legal holiday. Periods stated in hours are not to be rounded up to the next whole hour. Subdivision (a)(3) addresses situations when the clerks office is inaccessible during the last hour before a filing deadline expires. Subdivision (a)(2)(B) directs that every hour be counted. Thus, for example, a 72-hour period that commences at 10:23 a.m. on Friday, November 2, 2007 Subdivision (a)(3). Subdivision (a)(3)s extensions apply [u]nless the court orders otherwise. In some circumstances, the court might not wish a period of inaccessibility to trigger a full 24-hour extension; in those instances, the court can specify a briefer extension. The text of the rule no longer refers to weather or other conditions as the reason for the inaccessibility of the clerks office. The reference to weather was deleted from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system. Weather can still be a reason for inaccessibility of the clerks office. The rule does not attempt to define inaccessibility. Rather, the concept will continue to develop through caselaw, see, e.g. When Is Office of Clerk of Court Inaccessible Due to Weather or Other Conditions for Purpose of Computing Time Period for Filing Papers under Rule 6(a) of Federal Rules of Civil Procedure see, e.g. Subdivision (a)(4). 28 U.S.C.  452 provides that [a]ll courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders. A corresponding provision exists in Rule 77(a). Some courts have held that these provisions permit an after-hours filing by handing the papers to an appropriate official. See, e.g. Casalduc v. Diaz Subdivision (a)(5). after See, e.g. before See, e.g. after September 1, 2007 September 4, 2007 before Subdivision (a)(6). For forward-counted periods i.e. April 21, 2008 Changes Made after Publication and Comment. [ Subdivisions (b) and (c). Committee Notes on Rules2016 Amendment Rule 6(d) is amended to remove service by electronic means under Rule 5(b)(2)(E) from the modes of service that allow 3 added days to act after being served. Rule 5(b)(2) was amended in 2001 to provide for service by electronic means. Although electronic transmission seemed virtually instantaneous even then, electronic service was included in the modes of service that allow 3 added days to act after being served. There were concerns that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments. Those concerns have been substantially alleviated by advances in technology and in widespread skill in using electronic transmission. A parallel reason for allowing the 3 added days was that electronic service was authorized only with the consent of the person to be served. Concerns about the reliability of electronic transmission might have led to refusals of consent; the 3 added days were calculated to alleviate these concerns. Diminution of the concerns that prompted the decision to allow the 3 added days for electronic transmission is not the only reason for discarding this indulgence. Many rules have been changed to ease the task of computing time by adopting 7-, 14-, 21-, and 28-day periods that allow day-of-the-week counting. Adding 3 days at the end complicated the counting, and increased the occasions for further complication by invoking the provisions that apply when the last day is a Saturday, Sunday, or legal holiday. Electronic service after business hours, or just before or during a weekend or holiday, may result in a practical reduction in the time available to respond. Extensions of time may be warranted to prevent prejudice. Eliminating Rule 5(b) subparagraph (2)(E) from the modes of service that allow 3 added days means that the 3 added days cannot be retained by consenting to service by electronic means. Consent to electronic service in registering for electronic case filing, for example, does not count as consent to service by any other means of delivery under subparagraph (F). What is now Rule 6(d) was amended in 2005 to remove any doubt as to the method for calculating the time to respond after service by mail, leaving with the clerk of court, electronic means, or by other means consented to by the party served. A potential ambiguity was created by substituting after service for the earlier references to acting after service upon the party if a paper or notice is served upon the party by the specified means. [A]fter service could be read to refer not only to a party that has been served but also to a party that has made service. That reading would mean that a party who is allowed a specified time to act after making service can extend the time by choosing one of the means of service specified in the rule, something that was never intended by the original rule or the amendment. Rules setting a time to act after making service include Rules 14(a)(1), 15(a)(1)(A), and 38(b)(1). [A]fter being served is substituted for after service to dispel any possible misreading. Committee Notes on Rules2023 Amendment The amendment adds Juneteenth National Independence Day to the list of legal holidays. See Juneteenth National Independence Day Act, P.L. 11717 TITLE III. PLEADINGS AND MOTIONS Rule 7. Pleadings Allowed; Form of Motions and Other Papers (a) Pleadings. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) Motions and Other Papers. (1)  In General. (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. (2)  Form. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Apr. 28, 1983 Aug. 1, 1983 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 1. A provision designating pleadings and defining a motion is common in the State practice acts. See Ill.Rev.Stat. (1937), ch. 110,  156 (Designation and order of pleadings); 2 Minn.Stat. (Mason, 1927)  9246 (Definition of motion); and N.Y.C.P.A. (1937)  113 (Definition of motion). Former Equity Rules 18 (PleadingsTechnical Forms Abrogated), 29 (DefensesHow Presented), and 33 (Testing Sufficiency of Defense) abolished technical forms of pleading, demurrers, and pleas, and exceptions for insufficiency of an answer. 2. Note to Subdivision (a) For amendment of pleadings, see Rule 15 dealing with amended and supplemental pleadings. 3. All statutes which use the words petition, bill of complaint, plea, demurrer, and other such terminology are modified in form by this rule. Notes of Advisory Committee on Rules1946 Amendment This amendment [to subdivision (a)] eliminates any question as to whether the compulsory reply, where a counterclaim is pleaded, is a reply only to the counterclaim or is a general reply to the answer containing the counterclaim. See Commentary, Scope of Reply Where Defendant Has Pleaded Counterclaim Fort Chartres and Ivy Landing Drainage and Levee District No. Five v. Thompson Notes of Advisory Committee on Rules1963 Amendment Certain redundant words are eliminated and the subdivision is modified to reflect the amendment of Rule 14(a) which in certain cases eliminates the requirement of obtaining leave to bring in a third-party defendant. Notes of Advisory Committee on Rules1983 Amendment One of the reasons sanctions against improper motion practice have been employed infrequently is the lack of clarity of Rule 7. That rule has stated only generally that the pleading requirements relating to captions, signing, and other matters of form also apply to motions and other papers. The addition of Rule 7(b)(3) makes explicit the applicability of the signing requirement and the sanctions of Rule 11, which have been amplified. Committee Notes on Rules2007 Amendment The language of Rule 7 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 7(a) stated that there shall be * * * an answer to a cross-claim, if the answer contains a cross-claim * * *. Former Rule 12(a)(2) provided more generally that [a] party served with a pleading stating a cross-claim against that party shall serve an answer thereto * * *. New Rule 7(a) corrects this inconsistency by providing for an answer to a crossclaim. For the first time, Rule 7(a)(7) expressly authorizes the court to order a reply to a counterclaim answer. A reply may be as useful in this setting as a reply to an answer, a third-party answer, or a crossclaim answer. Former Rule 7(b)(1) stated that the writing requirement is fulfilled if the motion is stated in a written notice of hearing. This statement was deleted as redundant because a single written document can satisfy the writing requirements both for a motion and for a Rule 6(c)(1) notice. The cross-reference to Rule 11 in former Rule 7(b)(3) is deleted as redundant. Rule 11 applies by its own terms. The force and application of Rule 11 are not diminished by the deletion. Former Rule 7(c) is deleted because it has done its work. If a motion or pleading is described as a demurrer, plea, or exception for insufficiency, the court will treat the paper as if properly captioned. Rule 7.1. Disclosure Statement (a) Who Must File; Contents. (1)  Nongovernmental Corporations. (A) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or (B) states that there is no such corporation. (2)  Parties or Intervenors in a Diversity Case. (A) when the action is filed in or removed to federal court, and (B) when any later event occurs that could affect the courts jurisdiction under  1332(a). (b) Time to File; Supplemental Filing. A party, intervenor, or proposed intervenor must: (1) file the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and (2) promptly file a supplemental statement if any required information changes. (As added Apr. 29, 2002 Dec. 1, 2002 Apr. 30, 2007 Dec. 1, 2007 Apr. 11, 2022 Dec. 1, 2022  Committee Notes on Rules2002 Rule 7.1 is drawn from Rule 26.1 of the Federal Rules of Appellate Procedure, with changes to adapt to the circumstances of district courts that dictate different provisions for the time of filing, number of copies, and the like. The information required by Rule 7.1(a) reflects the financial interest standard of Canon 3C(1)(c) of the Code of Conduct for United States Judges. This information will support properly informed disqualification decisions in situations that call for automatic disqualification under Canon 3C(1)(c). It does not cover all of the circumstances that may call for disqualification under the financial interest standard, and does not deal at all with other circumstances that may call for disqualification. Although the disclosures required by Rule 7.1(a) may seem limited, they are calculated to reach a majority of the circumstances that are likely to call for disqualification on the basis of financial information that a judge may not know or recollect. Framing a rule that calls for more detailed disclosure will be difficult. Unnecessary disclosure requirements place a burden on the parties and on courts. Unnecessary disclosure of volumes of information may create a risk that a judge will overlook the one bit of information that might require disqualification, and also may create a risk that unnecessary disqualifications will be made rather than attempt to unravel a potentially difficult question. It has not been feasible to dictate more detailed disclosure requirements in Rule 7.1(a). Rule 7.1 does not prohibit local rules that require disclosures in addition to those required by Rule 7.1. Developing experience with local disclosure practices and advances in electronic technology may provide a foundation for adopting more detailed disclosure requirements by future amendments of Rule 7.1. Changes Made After Publication and Comments Committee Notes on Rules2007 Amendment The language of Rule 7.1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2022 Amendment Rule 7.1(a)(1). Rule 7.1(a)(2). Two examples of attributed citizenship are provided by  1332(c)(1) and (2), addressing direct actions against liability insurers and actions that include as parties a legal representative of the estate of a decedent, an infant, or an incompetent. Identifying citizenship in such actions is not likely to be difficult, and ordinarily should be pleaded in the complaint. But many examples of attributed citizenship arise from noncorporate entities that sue or are sued as an entity. A familiar example is a limited liability company, which takes on the citizenship of each of its owners. A party suing an LLC may not have all the information it needs to plead the LLCs citizenship. The same difficulty may arise with respect to other forms of noncorporate entities, some of them familiarsuch as partnerships and limited partnershipsand some of them more exotic, such as joint ventures. Pleading on information and belief is acceptable at the pleading stage, but disclosure is necessary both to ensure that diversity jurisdiction exists and to protect against the waste that may occur upon belated discovery of a diversity-destroying citizenship. Disclosure is required by a plaintiff as well as all other parties and intervenors. What counts as an entity for purposes of Rule 7.1 is shaped by the need to determine whether the court has diversity jurisdiction under  1332(a). It does not matter whether a collection of individuals is recognized as an entity for any other purpose, such as the capacity to sue or be sued in a common name, or is treated as no more than a collection of individuals for all other purposes. Every citizenship that is attributable to a party or intervenor must be disclosed. Discovery should not often be necessary after disclosures are made. But discovery may be appropriate to test jurisdictional facts by inquiring into such matters as the completeness of a disclosures list of persons or the accuracy of their described citizenships. This rule does not address the questions that may arise when a disclosure statement or discovery responses indicate that the party or intervenor cannot ascertain the citizenship of every individual or entity whose citizenship may be attributed to it. The rule recognizes that the court may limit the disclosure in appropriate circumstances. Disclosure might be cut short when a party reveals a citizenship that defeats diversity jurisdiction. Or the names of identified persons might be protected against disclosure to other parties when there are substantial interests in privacy and when there is no apparent need to support discovery by other parties to go behind the disclosure. Disclosure is limited to individuals and entities whose citizenship is attributed to a party or intervenor. The rules that govern attribution, and the time that controls the determination of complete diversity, are matters of subject-matter jurisdiction that this rule does not address. A supplemental statement is required if an event occurs after initial filing in federal court or removal to it that requires a determination of citizenships as they exist at a time after the initial filing or removal. Rule 7.1(b). Rule 8. General Rules of Pleading (a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (b) Defenses; Admissions and Denials. (1)  In General. (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2)  DenialsResponding to the Substance. (3)  General and Specific Denials. (4)  Denying Part of an Allegation. (5)  Lacking Knowledge or Information. (6)  Effect of Failing to Deny. (c) Affirmative Defenses. (1)  In General.  accord and satisfaction;  arbitration and award;  assumption of risk;  contributory negligence;  duress;  estoppel;  failure of consideration;  fraud;  illegality;  injury by fellow servant;  laches;  license;  payment;  release;  res judicata;  statute of frauds;  statute of limitations; and  waiver. (2)  Mistaken Designation. (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency. (1)  In General. (2)  Alternative Statements of a Claim or Defense. (3)  Inconsistent Claims or Defenses. (e) Construing Pleadings. Pleadings must be construed so as to do justice. (As amended Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007 Apr. 28, 2010 Dec. 1, 2010  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) See Rule 19(c) for the requirement of a statement in a claim for relief of the names of persons who ought to be parties and the reason for their omission. See Rule 23(b) for particular requirements as to the complaint in a secondary action by shareholders. Note to Subdivision (b) 2. This rule is, in part, [former] Equity Rule 30 (AnswerContentsCounterclaim), with the matter on denials largely from the Connecticut practice. See Conn.Practice Book (1934)  107, 108, and 122; Conn.Gen.Stat. (1930)  55085514. Compare the English practice, English Rules Under the Judicature Act Note to Subdivision (c) Note to Subdivision (d) Note to Subdivision (e) Alternative and Hypothetical Pleading Note to Subdivision (f) Notes of Advisory Committee on Rules1966 Amendment The change here is consistent with the broad purposes of unification. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 8 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The former Rule 8(b) and 8(e) cross-references to Rule 11 are deleted as redundant. Rule 11 applies by its own terms. The force and application of Rule 11 are not diminished by the deletion. Former Rule 8(b) required a pleader denying part of an averment to specify so much of it as is true and material and * * * deny only the remainder. [A]nd material is deleted to avoid the implication that it is proper to deny something that the pleader believes to be true but not material. Deletion of former Rule 8(e)(2)s whether based on legal, equitable, or maritime grounds reflects the parallel deletions in Rule 1 and elsewhere. Merger is now successfully accomplished. Changes Made After Publication and Comment Committee Notes on Rules2010 Amendment Subdivision (c)(1) Changes Made After Publication and Comment The Committee Note was revised to delete statements that were over-simplified. New material was added to provide a reminder of the means to determine whether a debt was in fact discharged. Rule 9. Pleading Special Matters (a) Capacity or Authority to Sue; Legal Existence. (1)  In General. (A) a partys capacity to sue or be sued; (B) a partys authority to sue or be sued in a representative capacity; or (C) the legal existence of an organized association of persons that is made a party. (2)  Raising Those Issues. (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally. (c) Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity. (d) Official Document or Act. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it. (f) Time and Place. An allegation of time or place is material when testing the sufficiency of a pleading. (g) Special Damages. If an item of special damage is claimed, it must be specifically stated. (h) Admiralty or Maritime Claim. (1)  How Designated. (2)  Designation for Appeal. (As amended Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Mar. 30, 1970 July 1, 1970 Mar. 2, 1987 Aug. 1, 1987 Apr. 11, 1997 Dec. 1, 1997 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Note to Subdivision (b) English Rules Under the Judicature Act Note to Subdivision (c) Note to Subdivision (e) Notes of Advisory Committee on Rules1966 Amendment Certain distinctive features of the admiralty practice must be preserved for what are now suits in admiralty. This raises the question: After unification, when a single form of action is established, how will the counterpart of the present suit in admiralty be identifiable? In part the question is easily answered. Some claims for relief can only be suits in admiralty, either because the admiralty jurisdiction is exclusive or because no nonmaritime ground of federal jurisdiction exists. Many claims, however, are cognizable by the district courts whether asserted in admiralty or in a civil action, assuming the existence of a nonmaritime ground of jurisdiction. Thus at present the pleader has power to determine procedural consequences by the way in which he exercises the classic privilege given by the saving-to-suitors clause (28 U.S.C.  1333) or by equivalent statutory provisions. For example, a longshoremans claim for personal injuries suffered by reason of the unseaworthiness of a vessel may be asserted in a suit in admiralty or, if diversity of citizenship exists, in a civil action. One of the important procedural consequences is that in the civil action either party may demand a jury trial, while in the suit in admiralty there is no right to jury trial except as provided by statute. It is no part of the purpose of unification to inject a right to jury trial into those admiralty cases in which that right is not provided by statute. Similarly as will be more specifically noted below, there is no disposition to change the present law as to interlocutory appeals in admiralty, or as to the venue of suits in admiralty; and, of course, there is no disposition to inject into the civil practice as it now is the distinctively maritime remedies (maritime attachment and garnishment, actions in rem, possessory, petitory and partition actions and limitation of liability). The unified rules must therefore provide some device for preserving the present power of the pleader to determine whether these historically maritime procedures shall be applicable to his claim or not; the pleader must be afforded some means of designating his claim as the counterpart of the present suit in admiralty, where its character as such is not clear. The problem is different from the similar one concerning the identification of claims that were formerly suits in equity. While that problem is not free from complexities, it is broadly true that the modern counterpart of the suit in equity is distinguishable from the former action at law by the character of the relief sought. This mode of identification is possible in only a limited category of admiralty cases. In large numbers of cases the relief sought in admiralty is simple money damages, indistinguishable from the remedy afforded by the common law. This is true, for example, in the case of the longshoremans action for personal injuries stated above. After unification has abolished the distinction between civil actions and suits in admiralty, the complaint in such an action would be almost completely ambiguous as to the pleaders intentions regarding the procedure invoked. The allegation of diversity of citizenship might be regarded as a clue indicating an intention to proceed as at present under the saving-to-suitors clause; but this, too, would be ambiguous if there were also reference to the admiralty jurisdiction, and the pleader ought not be required to forego mention of all available jurisdictional grounds. Other methods of solving the problem were carefully explored, but the Advisory Committee concluded that the preferable solution is to allow the pleader who now has power to determine procedural consequences by filing a suit in admiralty to exercise that power under unification, for the limited instances in which procedural differences will remain, by a simple statement in his pleading to the effect that the claim is an admiralty or maritime claim. The choice made by the pleader in identifying or in failing to identify his claim as an admiralty or maritime claim is not an irrevocable election. The rule provides that the amendment of a pleading to add or withdraw an identifying statement is subject to the principles of Rule 15. Notes of Advisory Committee on Rules1968 Amendment The amendment eliminates the reference to Rule 73 which is to be abrogated and transfers to Rule 9(h) the substance of Subsection (h) of Rule 73 which preserved the right to an interlocutory appeal in admiralty cases which is provided by 28 U.S.C.  1292(a)(3). Notes of Advisory Committee on Rules1970 Amendment The reference to Rule 26(a) is deleted, in light of the transfer of that subdivision to Rule 30(a) and the elimination of the de bene esse procedure therefrom. See the Advisory Committees note to Rule 30(a). Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1997 Amendment Section 1292(a)(3) of the Judicial Code provides for appeal from [i]nterlocutory decrees of * * * district courts * * * determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. Rule 9(h) was added in 1966 with the unification of civil and admiralty procedure. Civil Rule 73(h) was amended at the same time to provide that the  1292(a)(3) reference to admiralty cases shall be construed to mean admiralty and maritime claims within the meaning of Rule 9(h). This provision was transferred to Rule 9(h) when the Appellate Rules were adopted. A single case can include both admiralty or maritime claims and nonadmiralty claims or parties. This combination reveals an ambiguity in the statement in present Rule 9(h) that an admiralty claim is an admiralty case. An order determining the rights and liabilities of the parties within the meaning of  1292(a)(3) may resolve only a nonadmiralty claim, or may simultaneously resolve interdependent admiralty and nonadmiralty claims. Can appeal be taken as to the nonadmiralty matter, because it is part of a case that includes an admiralty claim, or is appeal limited to the admiralty claim? The courts of appeals have not achieved full uniformity in applying the  1292(a)(3) requirement that an order determin[e] the rights and liabilities of the parties. It is common to assert that the statute should be construed narrowly, under the general policy that exceptions to the final judgment rule should be construed narrowly. This policy would suggest that the ambiguity should be resolved by limiting the interlocutory appeal right to orders that determine the rights and liabilities of the parties to an admiralty claim. A broader view is chosen by this amendment for two reasons. The statute applies to admiralty cases, and may itself provide for appeal from an order that disposes of a nonadmiralty claim that is joined in a single case with an admiralty claim. Although a rule of court may help to clarify and implement a statutory grant of jurisdiction, the line is not always clear between permissible implementation and impermissible withdrawal of jurisdiction. In addition, so long as an order truly disposes of the rights and liabilities of the parties within the meaning of  1292(a)(3), it may prove important to permit appeal as to the nonadmiralty claim. Disposition of the nonadmiralty claim, for example, may make it unnecessary to consider the admiralty claim and have the same effect on the case and parties as disposition of the admiralty claim. Or the admiralty and nonadmiralty claims may be interdependent. An illustration is provided by Roco Carriers, Ltd. v. M/V Nurnberg Express claims cases It must be emphasized that this amendment does not rest on any particular assumptions as to the meaning of the  1292(a)(3) provision that limits interlocutory appeal to orders that determine the rights and liabilities of the parties. It simply reflects the conclusion that so long as the case involves an admiralty claim and an order otherwise meets statutory requirements, the opportunity to appeal should not turn on the circumstance that the order doesor does notdispose of an admiralty claim. No attempt is made to invoke the authority conferred by 28 U.S.C.  1292(e) to provide by rule for appeal of an interlocutory decision that is not otherwise provided for by other subsections of  1292. GAP Report on Rule 9(h) Committee Notes on Rules2006 Amendment Rule 9(h) is amended to conform to the changed title of the Supplemental Rules. Committee Notes on Rules2007 Amendment The language of Rule 9 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 15 governs pleading amendments of its own force. The former redundant statement that Rule 15 governs an amendment that adds or withdraws a Rule 9(h) designation as an admiralty or maritime claim is deleted. The elimination of paragraph (2) means that (3) will be redesignated as (2) in Style Rule 9(h). Rule 10. Form of Pleadings (a) Caption; Names of Parties. Every pleading must have a caption with the courts name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. (b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrenceand each defense other than a denialmust be stated in a separate count or defense. (c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 The first sentence is derived in part from the opening statement of [former] Equity Rule 25 (Bill of ComplaintContents). The remainder of the rule is an expansion in conformity with usual state provisions. For numbered paragraphs and separate statements, see Conn.Gen.Stat. (1930)  5513; Ill.Rev.Stat. (1937) ch. 110,  157 (2); N.Y.R.C.P. (1937) Rule 90. For incorporation by reference, see N.Y.R.C.P. (1937) Rule 90. For written instruments as exhibits, see Ill.Rev.Stat. (1937) ch. 110,  160. Committee Notes on Rules2007 Amendment The language of Rule 10 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorneys nameor by a party personally if the party is unrepresented. The paper must state the signers address, e-mail 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 attorneys or partys attention. (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paperwhether by signing, filing, submitting, or later advocating itan attorney or unrepresented party certifies that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) Sanctions. (1)  In General. (2)  Motion for Sanctions. (3)  On the Courts Initiative. (4)  Nature of a Sanction. (5)  Limitations on Monetary Sanctions. (A) against a represented party for violating Rule 11(b)(2); or (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. (6)  Requirements for an Order. (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37. (As amended Apr. 28, 1983 Aug. 1, 1983 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 This is substantially the content of [former] Equity Rules 24 (Signature of Counsel) and 21 (Scandal and Impertinence) consolidated and unified. Compare [former] Equity Rule 36 (Officers Before Whom Pleadings Verified). Compare to similar purposes, English Rules Under the Judicature Act Great Australian Gold Mining Co. v. Martin, L. R This rule expressly continues any statute which requires a pleading to be verified or accompanied by an affidavit, such as: U.S.C., Title 28:  381 [former] (Preliminary injunctions and temporary restraining orders)  762 [now 1402] (Suit against the United States). U.S.C., Title 28,  829 [now 1927] (Costs; attorney liable for, when) is unaffected by this rule. For complaints which must be verified under these rules, see Rules 23(b) (Secondary Action by Shareholders) and 65 (Injunctions). For abolition of the rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances, see Pa.Stat.Ann. (Purdon, 1931) see 12 P.S.Pa.,  1222; for the rule in equity itself, see Greenfield v. Blumenthal Notes of Advisory Committee on Rules1983 Amendment Since its original promulgation, Rule 11 has provided for the striking of pleadings and the imposition of disciplinary sanctions to check abuses in the signing of pleadings. Its provisions have always applied to motions and other papers by virtue of incorporation by reference in Rule 7(b)(2). The amendment and the addition of Rule 7(b)(3) expressly confirms this applicability. Experience shows that in practice Rule 11 has not been effective in deterring abuses. See 6 Wright & Miller, Federal Practice and Procedure: Civil Sanctions Imposable for Violations of the Federal Rules of Civil Procedure Federal Practice The amended rule attempts to deal with the problem by building upon and expanding the equitable doctrine permitting the court to award expenses, including attorneys fees, to a litigant whose opponent acts in bad faith in instituting or conducting litigation. See, e.g., Roadway Express, Inc. v. Piper Hall v. Cole The expanded nature of the lawyers certification in the fifth sentence of amended Rule 11 recognizes that the litigation process may be abused for purposes other than delay. See, e.g., Browning Debenture Holders Committee v. DASA Corp The words good ground to support the pleading in the original rule were interpreted to have both factual and legal elements. See, e.g., Heart Disease Research Foundation v. General Motors Corp The new language stresses the need for some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the rule. The standard is one of reasonableness under the circumstances. See Kinee v. Abraham Lincoln Fed. Sav. & Loan Assn Nemeroff v. Abelson The rule is not intended to chill an attorneys enthusiasm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signers conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Thus, what constitutes a reasonable inquiry may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar. The rule does not require a party or an attorney to disclose privileged communications or work product in order to show that the signing of the pleading, motion, or other paper is substantially justified. The provisions of Rule 26(c), including appropriate orders after in camera Amended Rule 11 continues to apply to anyone who signs a pleading, motion, or other paper. Although the standard is the same for unrepresented parties, who are obliged themselves to sign the pleadings, the court has sufficient discretion to take account of the special circumstances that often arise in pro se Haines v. Kerner The provision in the original rule for striking pleadings and motions as sham and false has been deleted. The passage has rarely been utilized, and decisions thereunder have tended to confuse the issue of attorney honesty with the merits of the action. See generally Risinger, Honesty in Pleading and its Enforcement: Some Striking Problems with Fed. R. Civ. P. 11 Murchison v. Kirby Federal Practice and Procedure: Civil The former reference to the inclusion of scandalous or indecent matter, which is itself strong indication that an improper purpose underlies the pleading, motion, or other paper, also has been deleted as unnecessary. Such matter may be stricken under Rule 12(f) as well as dealt with under the more general language of amended Rule 11. The text of the amended rule seeks to dispel apprehensions that efforts to obtain enforcement will be fruitless by insuring that the rule will be applied when properly invoked. The word sanctions in the caption, for example, stresses a deterrent orientation in dealing with improper pleadings, motions or other papers. This corresponds to the approach in imposing sanctions for discovery abuses. See National Hockey League v. Metropolitan Hockey Club The reference in the former text to wilfullness as a prerequisite to disciplinary action has been deleted. However, in considering the nature and severity of the sanctions to be imposed, the court should take account of the state of the attorneys or partys actual or presumed knowledge when the pleading or other paper was signed. Thus, for example, when a party is not represented by counsel, the absence of legal advice is an appropriate factor to be considered. Courts currently appear to believe they may impose sanctions on their own motion. See North American Trading Corp. v. Zale Corp If the duty imposed by the rule is violated, the court should have the discretion to impose sanctions on either the attorney, the party the signing attorney represents, or both, or on an unrepresented party who signed the pleading, and the new rule so provides. Although Rule 11 has been silent on the point, courts have claimed the power to impose sanctions on an attorney personally, either by imposing costs or employing the contempt technique. See 5 Wright & Miller, Federal Practice and Procedure: Civil Federal Practice Even though it is the attorney whose signature violates the rule, it may be appropriate under the circumstances of the case to impose a sanction on the client. See Browning Debenture Holders Committee v. DASA Corp., supra A party seeking sanctions should give notice to the court and the offending party promptly upon discovering a basis for doing so. The time when sanctions are to be imposed rests in the discretion of the trial judge. However, it is anticipated that in the case of pleadings the sanctions issue under Rule 11 normally will be determined at the end of the litigation, and in the case of motions at the time when the motion is decided or shortly thereafter. The procedure obviously must comport with due process requirements. The particular format to be followed should depend on the circumstances of the situation and the severity of the sanction under consideration. In many situations the judges participation in the proceedings provides him with full knowledge of the relevant facts and little further inquiry will be necessary. To assure that the efficiencies achieved through more effective operation of the pleading regimen will not be offset by the cost of satellite litigation over the imposition of sanctions, the court must to the extent possible limit the scope of sanction proceedings to the record. Thus, discovery should be conducted only by leave of the court, and then only in extraordinary circumstances. Although the encompassing reference to other papers in new Rule 11 literally includes discovery papers, the certification requirement in that context is governed by proposed new Rule 26(g). Discovery motions, however, fall within the ambit of Rule 11. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Purpose of revision e.g Sanctions and Attorneys Fees The Rule 11 Sanctioning Process Report of the Third Circuit Task Force on Federal Rule of Civil Procedure 11 Report on Rule 11 Sanctions: The Federal Law of Litigation Abuse The Federal Law of Sanctions Rule 11 Sanctions: Case Law Perspectives and Preventive Measures The rule retains the principle that attorneys and pro se litigants have an obligation to the court to refrain from conduct that frustrates the aims of Rule 1. The revision broadens the scope of this obligation, but places greater constraints on the imposition of sanctions and should reduce the number of motions for sanctions presented to the court. New subdivision (d) removes from the ambit of this rule all discovery requests, responses, objections, and motions subject to the provisions of Rule 26 through 37. Subdivision (a) The sentence in the former rule relating to the effect of answers under oath is no longer needed and has been eliminated. The provision in the former rule that signing a paper constitutes a certificate that it has been read by the signer also has been eliminated as unnecessary. The obligations imposed under subdivision (b) obviously require that a pleading, written motion, or other paper be read before it is filed or submitted to the court. Subdivisions (b) and (c) The rule applies only to assertions contained in papers filed with or submitted to the court. It does not cover matters arising for the first time during oral presentations to the court, when counsel may make statements that would not have been made if there had been more time for study and reflection. However, a litigants obligations with respect to the contents of these papers are not measured solely as of the time they are filed with or submitted to the court, but include reaffirming to the court and advocating positions contained in those pleadings and motions after learning that they cease to have any merit. For example, an attorney who during a pretrial conference insists on a claim or defense should be viewed as presenting to the court that contention and would be subject to the obligations of subdivision (b) measured as of that time. Similarly, if after a notice of removal is filed, a party urges in federal court the allegations of a pleading filed in state court (whether as claims, defenses, or in disputes regarding removal or remand), it would be viewed as presentingand hence certifying to the district court under Rule 11those allegations. The certification with respect to allegations and other factual contentions is revised in recognition that sometimes a litigant may have good reason to believe that a fact is true or false but may need discovery, formal or informal, from opposing parties or third persons to gather and confirm the evidentiary basis for the allegation. Tolerance of factual contentions in initial pleadings by plaintiffs or defendants when specifically identified as made on information and belief does not relieve litigants from the obligation to conduct an appropriate investigation into the facts that is reasonable under the circumstances; it is not a license to join parties, make claims, or present defenses without any factual basis or justification. Moreover, if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention. Subdivision (b) does not require a formal amendment to pleadings for which evidentiary support is not obtained, but rather calls upon a litigant not thereafter to advocate such claims or defenses. The certification is that there is (or likely will be) evidentiary support for the allegation, not that the party will prevail with respect to its contention regarding the fact. That summary judgment is rendered against a party does not necessarily mean, for purposes of this certification, that it had no evidentiary support for its position. On the other hand, if a party has evidence with respect to a contention that would suffice to defeat a motion for summary judgment based thereon, it would have sufficient evidentiary support for purposes of Rule 11. Denials of factual contentions involve somewhat different considerations. Often, of course, a denial is premised upon the existence of evidence contradicting the alleged fact. At other times a denial is permissible because, after an appropriate investigation, a party has no information concerning the matter or, indeed, has a reasonable basis for doubting the credibility of the only evidence relevant to the matter. A party should not deny an allegation it knows to be true; but it is not required, simply because it lacks contradictory evidence, to admit an allegation that it believes is not true. The changes in subdivisions (b)(3) and (b)(4) will serve to equalize the burden of the rule upon plaintiffs and defendants, who under Rule 8(b) are in effect allowed to deny allegations by stating that from their initial investigation they lack sufficient information to form a belief as to the truth of the allegation. If, after further investigation or discovery, a denial is no longer warranted, the defendant should not continue to insist on that denial. While sometimes helpful, formal amendment of the pleadings to withdraw an allegation or denial is not required by subdivision (b). Arguments for extensions, modifications, or reversals of existing law or for creation of new law do not violate subdivision (b)(2) provided they are nonfrivolous. This establishes an objective standard, intended to eliminate any empty-head pure-heart justification for patently frivolous arguments. However, the extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether paragraph (2) has been violated. Although arguments for a change of law are not required to be specifically so identified, a contention that is so identified should be viewed with greater tolerance under the rule. The court has available a variety of possible sanctions to impose for violations, such as striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs; ordering a fine payable to the court; referring the matter to disciplinary authorities (or, in the case of government attorneys, to the Attorney General, Inspector General, or agency head), etc. See Manual for Complex Litigation, Second Since the purpose of Rule 11 sanctions is to deter rather than to compensate, the rule provides that, if a monetary sanction is imposed, it should ordinarily be paid into court as a penalty. However, under unusual circumstances, particularly for [subdivision] (b)(1) violations, deterrence may be ineffective unless the sanction not only requires the person violating the rule to make a monetary payment, but also directs that some or all of this payment be made to those injured by the violation. Accordingly, the rule authorizes the court, if requested in a motion and if so warranted, to award attorneys fees to another party. Any such award to another party, however, should not exceed the expenses and attorneys fees for the services directly and unavoidably caused by the violation of the certification requirement. If, for example, a wholly unsupportable count were included in a multi-count complaint or counterclaim for the purpose of needlessly increasing the cost of litigation to an impecunious adversary, any award of expenses should be limited to those directly caused by inclusion of the improper count, and not those resulting from the filing of the complaint or answer itself. The award should not provide compensation for services that could have been avoided by an earlier disclosure of evidence or an earlier challenge to the groundless claims or defenses. Moreover, partial reimbursement of fees may constitute a sufficient deterrent with respect to violations by persons having modest financial resources. In cases brought under statutes providing for fees to be awarded to prevailing parties, the court should not employ cost-shifting under this rule in a manner that would be inconsistent with the standards that govern the statutory award of fees, such as stated in Christiansburg Garment Co. v. EEOC The sanction should be imposed on the personswhether attorneys, law firms, or partieswho have violated the rule or who may be determined to be responsible for the violation. The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court, and in most situations is the person to be sanctioned for a violation. Absent exceptional circumstances, a law firm is to be held also responsible when, as a result of a motion under subdivision (c)(1)(A), one of its partners, associates, or employees is determined to have violated the rule. Since such a motion may be filed only if the offending paper is not withdrawn or corrected within 21 days after service of the motion, it is appropriate that the law firm ordinarily be viewed as jointly responsible under established principles of agency. This provision is designed to remove the restrictions of the former rule. Cf. Pavelic & LeFlore v. Marvel Entertainment Group The revision permits the court to consider whether other attorneys in the firm, co-counsel, other law firms, or the party itself should be held accountable for their part in causing a violation. When appropriate, the court can make an additional inquiry in order to determine whether the sanction should be imposed on such persons, firms, or parties either in addition to or, in unusual circumstances, instead of the person actually making the presentation to the court. For example, such an inquiry may be appropriate in cases involving governmental agencies or other institutional parties that frequently impose substantial restrictions on the discretion of individual attorneys employed by it. Sanctions that involve monetary awards (such as a fine or an award of attorneys fees) may not be imposed on a represented party for causing a violation of subdivision (b)(2), involving frivolous contentions of law. Monetary responsibility for such violations is more properly placed solely on the partys attorneys. With this limitation, the rule should not be subject to attack under the Rules Enabling Act. See Willy v. Coastal Corp Business Guides, Inc. v. Chromatic Communications Enter. Inc Explicit provision is made for litigants to be provided notice of the alleged violation and an opportunity to respond before sanctions are imposed. Whether the matter should be decided solely on the basis of written submissions or should be scheduled for oral argument (or, indeed, for evidentiary presentation) will depend on the circumstances. If the court imposes a sanction, it must, unless waived, indicate its reasons in a written order or on the record; the court should not ordinarily have to explain its denial of a motion for sanctions. Whether a violation has occurred and what sanctions, if any, to impose for a violation are matters committed to the discretion of the trial court; accordingly, as under current law, the standard for appellate review of these decisions will be for abuse of discretion. See Cooter & Gell v. Hartmarx Corp The revision leaves for resolution on a case-by-case basis, considering the particular circumstances involved, the question as to when a motion for violation of Rule 11 should be served and when, if filed, it should be decided. Ordinarily the motion should be served promptly after the inappropriate paper is filed, and, if delayed too long, may be viewed as untimely. In other circumstances, it should not be served until the other party has had a reasonable opportunity for discovery. Given the safe harbor provisions discussed below, a party cannot delay serving its Rule 11 motion until conclusion of the case (or judicial rejection of the offending contention). Rule 11 motions should not be made or threatened for minor, inconsequential violations of the standards prescribed by subdivision (b). They should not be employed as a discovery device or to test the legal sufficiency or efficacy of allegations in the pleadings; other motions are available for those purposes. Nor should Rule 11 motions be prepared to emphasize the merits of a partys position, to exact an unjust settlement, to intimidate an adversary into withdrawing contentions that are fairly debatable, to increase the costs of litigation, to create a conflict of interest between attorney and client, or to seek disclosure of matters otherwise protected by the attorney-client privilege or the work-product doctrine. As under the prior rule, the court may defer its ruling (or its decision as to the identity of the persons to be sanctioned) until final resolution of the case in order to avoid immediate conflicts of interest and to reduce the disruption created if a disclosure of attorney-client communications is needed to determine whether a violation occurred or to identify the person responsible for the violation. The rule provides that requests for sanctions must be made as a separate motion, i.e To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the safe harbor period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion. As under former Rule 11, the filing of a motion for sanctions is itself subject to the requirements of the rule and can lead to sanctions. However, service of a cross motion under Rule 11 should rarely be needed since under the revision the court may award to the person who prevails on a motion under Rule 11whether the movant or the target of the motionreasonable expenses, including attorneys fees, incurred in presenting or opposing the motion. The power of the court to act on its own initiative is retained, but with the condition that this be done through a show cause order. This procedure provides the person with notice and an opportunity to respond. The revision provides that a monetary sanction imposed after a court-initiated show cause order be limited to a penalty payable to the court and that it be imposed only if the show cause order is issued before any voluntary dismissal or an agreement of the parties to settle the claims made by or against the litigant. Parties settling a case should not be subsequently faced with an unexpected order from the court leading to monetary sanctions that might have affected their willingness to settle or voluntarily dismiss a case. Since show cause orders will ordinarily be issued only in situations that are akin to a contempt of court, the rule does not provide a safe harbor to a litigant for withdrawing a claim, defense, etc., after a show cause order has been issued on the courts own initiative. Such corrective action, however, should be taken into account in deciding whatif anysanction to impose if, after consideration of the litigants response, the court concludes that a violation has occurred. Subdivision (d) Rule 11 is not the exclusive source for control of improper presentations of claims, defenses, or contentions. It does not supplant statutes permitting awards of attorneys fees to prevailing parties or alter the principles governing such awards. It does not inhibit the court in punishing for contempt, in exercising its inherent powers, or in imposing sanctions, awarding expenses, or directing remedial action authorized under other rules or under 28 U.S.C.  1927. See Chambers v. NASCO Chambers Committee Notes on Rules2007 Amendment The language of Rule 11 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Providing an e-mail address is useful, but does not of itself signify consent to filing or service by e-mail. Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing (a) Time to Serve a Responsive Pleading. (1)  In General. (A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time. (2)  United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. (3)  United States Officers or Employees Sued in an Individual Capacity. (4)  Effect of a Motion. (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the courts action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served. (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. (c) Motion for Judgment on the Pleadings. After the pleadings are closedbut early enough not to delay triala party may move for judgment on the pleadings. (d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. (e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. (g) Joining Motions. (1)  Right to Join. (2)  Limitation on Further Motions. (h) Waiving and Preserving Certain Defenses. (1)  When Some Are Waived. (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or (B) failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. (2)  When to Raise Others. (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial. (3)  Lack of Subject-Matter Jurisdiction. (i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)(7)whether made in a pleading or by motionand a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 17, 2000 Dec. 1, 2000 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) 2. U.S.C., Title 28,  763 [now 547] (Petition in action against United States; service; appearance by district attorney) provides that the United States as a defendant shall have 60 days within which to answer or otherwise defend. This and other statutes which provide 60 days for the United States or an officer or agency thereof to answer or otherwise defend are continued by this rule. Insofar as any statutes not excepted in Rule 81 provide a different time for a defendant to defend, such statutes are modified. See U.S.C., Title 28, [former]  45 (District courts; practice and procedure in certain cases under the interstate commerce laws) (30 days). 3. Compare the last sentence of [former] Equity Rule 29 (DefensesHow Presented) and N.Y.C.P.A. (1937)  283. See Rule 15(a) for time within which to plead to an amended pleading. Note to Subdivisions (b) and (d) English Rules Under the Judicature Act Code Pleading 2. For provisions authorizing defenses to be made in the answer or reply see English Rules Under the Judicature Act No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed. 3. [Former] Equity Rule 29 (DefensesHow Presented) abolished demurrers and provided that defenses in point of law arising on the face of the bill should be made by motion to dismiss or in the answer, with further provision that every such point of law going to the whole or material part of the cause or causes stated might be called up and disposed of before final hearing at the discretion of the court. Likewise many state practices have abolished the demurrer, or retain it only to attack substantial and not formal defects. See 6 Tenn.Code Ann. (Williams, 1934)  8784; Ala.Code Ann. (Michie, 1928)  9479; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231,  1518; Kansas Gen.Stat.Ann. (1935)  60705, 60706. Note to Subdivision (c) Note to Subdivisions (e) English Rules Under the Judicature Act Note to Subdivision (g) Note to Subdivision (h) Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) Subdivision (b) Manner of Raising Objection of Non-Joinder of Indispensable Party United States v. Metropolitan Life Ins. Co Rule 12(b)(6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. On the other hand, in many cases the district courts have permitted the introduction of such material. When these cases have reached circuit courts of appeals in situations where the extraneous material so received shows that there is no genuine issue as to any material question of fact and that on the undisputed facts as disclosed by the affidavits or depositions, one party or the other is entitled to judgment as a matter of law, the circuit courts, properly enough, have been reluctant to dispose of the case merely on the face of the pleading, and in the interest of prompt disposition of the action have made a final disposition of it. In dealing with such situations the Second Circuit has made the sound suggestion that whatever its label or original basis, the motion may be treated as a motion for summary judgment and disposed of as such. Samara v. United States Boro Hall Corp. v. General Motors Corp Kithcart v. Metropolitan Life Ins. Co It has also been suggested that this practice could be justified on the ground that the federal rules permit speaking motions. The Committee entertains the view that on motion under Rule 12(b)(6) to dismiss for failure of the complaint to state a good claim, the trial court should have authority to permit the introduction of extraneous matter, such as may be offered on a motion for summary judgment, and if it does not exclude such matter the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in Rule 56 relating to summary judgments, and, of course, in such a situation, when the case reaches the circuit court of appeals, that court should treat the motion in the same way. The Committee believes that such practice, however, should be tied to the summary judgment rule. The term speaking motion is not mentioned in the rules, and if there is such a thing its limitations are undefined. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion. The Committee emphasizes particularly the fact that the summary judgment rule does not permit a case to be disposed of by judgment on the merits on affidavits, which disclose a conflict on a material issue of fact, and unless this practice is tied to the summary judgment rule, the extent to which a court, on the introduction of such extraneous matter, may resolve questions of fact on conflicting proof would be left uncertain. The decisions dealing with this general situation may be generally grouped as follows: (1) cases dealing with the use of affidavits and other extraneous material on motions; (2) cases reversing judgments to prevent final determination on mere pleading allegations alone. Under group (1) are: Boro Hall Corp. v. General Motors Corp Gallup v. Caldwell Central Mexico Light & Power Co. v. Munch National Labor Relations Board v. Montgomery Ward & Co Urquhart v. American-La France Foamite Corp Samara v. United States Cohen v. American Window Glass Co Sperry Products Inc. v. Association of American Railroads Joint Council Dining Car Employees Local 370 v. Delaware, Lackawanna and Western R. Co Weeks v. Bareco Oil Co Carroll v. Morrison Hotel Corp Victory v. Manning Locals No. 1470, No. 1469, and 1512 of International Longshoremens Association v. Southern Pacific Co Lucking v. Delano San Francisco Lodge No. 68 of International Association of Machinists v. Forrestal Benson v. Export Equipment Corp F. E. Myers & Bros. Co. v. Gould Pumps, Inc Kohler v. Jacobs Cohen v. United States Under group (2) are: Sparks v. England Continental Collieries, Inc. v. Shober Downey v. Palmer DeLoach v. Crowleys Inc Leimer v. State Mutual Life Assurance Co. of Worcester, Mass Rossiter v. Vogel Karl Kiefer Machine Co. v. United States Bottlers Machinery Co Chicago Metallic Mfg. Co. v. Edward Katzinger Co Louisiana Farmers Protective Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc Publicity Bldg. Realty Corp. v. Hannegan Dioguardi v. Durning Package Closure Corp. v. Sealright Co., Inc Tahir Erk v. Glenn L. Martin Co Bell v. Preferred Life Assurance Society of Montgomery, Ala The addition at the end of subdivision (b) makes it clear that on a motion under Rule 12(b)(6) extraneous material may not be considered if the court excludes it, but that if the court does not exclude such material the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. It will also be observed that if a motion under Rule 12(b)(6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment. In this manner and to this extent the amendment regularizes the practice above described. As the courts are already dealing with cases in this way, the effect of this amendment is really only to define the practice carefully and apply the requirements of the summary judgment rule in the disposition of the motion. Subdivision (c) Subdivision (d) Subdivision (e) Slusher v. Jones Best Foods, Inc. v. General Mills, Inc Braden v. Callaway Rule 12(e) as originally drawn has been the subject of more judicial rulings than any other part of the rules, and has been much criticized by commentators, judges and members of the bar. See general discussion and cases cited in 1 Moores Federal Practice New Federal Procedure and the Courts Sun Valley Mfg. Co. v. Mylish Walling v. American Steamship Co Walling v. Alabama Pipe Co Fleming v. Mason & Dixon Lines, Inc Kellogg Co. v. National Biscuit Co Brown v. H. L. Green Co Pedersen v. Standard Accident Ins. Co Bowles v. Ohse Klages v. Cohen Bowles v. Lawrence McKinney Tool & Mfg. Co. v. Hoyt Bowles v. Jack Poole v. White Bowles v. Gabel Subdivision (f) Dysart v. Remington-Rand, Inc Eastman Kodak Co. v. McAuley Schenley Distillers Corp. v. Renken Yale Transport Corp. v. Yellow Truck & Coach Mfg. Co United States v. Turner Milk Co Teiger v. Stephan Oderwald, Inc Teplitsky v. Pennsylvania R. Co Gallagher v. Carroll United States v. Palmer Indemnity Ins. Co. of North America v. Pan American Airways, Inc Modes of Attacking Insufficient Defenses in the Answer Subdivision (g) The alteration of the except clause requires that other than provided in subdivision (h) a party who resorts to a motion to raise defenses specified in the rule, must include in one motion all that are then available to him. Under the original rule defenses which could be raised by motion were divided into two groups which could be the subjects of two successive motions. Subdivision (h) Notes of Advisory Committee on Rules1963 Amendment This amendment conforms to the amendment of Rule 4(e). See also the Advisory Committees Note to amended Rule 4(b). Notes of Advisory Committee on Rules1966 Amendment Subdivision (b)(7) Subdivision (g) Subdivision (h) Keefe v. Derounian Elbinger v. Precision Metal Workers Corp Rensing v. Turner Aviation Corp P. Beiersdorf & Co. v. Duke Laboratories, Inc Neset v. Christensen Phillips v. Baker Crum v. Graham Birnbaum v. Birrell Johnson v. Joseph Schlitz Brewing Co Carter v. American Bus Lines, Inc Amended subdivision (h)(1)(A) eliminates the ambiguity and states that certain specified defenses which were available to a party when he made a preanswer motion, but which he omitted from the motion, are waived. The specified defenses are lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process (see Rule 12(b)(2)(5)). A party who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job. The waiver reinforces the policy of subdivision (g) forbidding successive motions. By amended subdivision (h)(1)(B), the specified defenses, even if not waived by the operation of (A), are waived by the failure to raise them by a motion under Rule 12 or in the responsive pleading or any amendment thereof to which the party is entitled as a matter of course. The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading. Since the language of the subdivisions is made clear, the party is put on fair notice of the effect of his actions and omissions and can guard himself against unintended waiver. It is to be noted that while the defenses specified in subdivision (h)(1) are subject to waiver as there provided, the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defense to a claim (see Rule 12(b)(6), (7), (f)), as well as the defense of lack of jurisdiction over the subject matter (see Rule 12(b)(1)), are expressly preserved against waiver by amended subdivision (h)(2) and (3). Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Subdivision (a) is divided into paragraphs for greater clarity, and paragraph (1)(B) is added to reflect amendments to Rule 4. Consistent with Rule 4(d)(3), a defendant that timely waives service is allowed 60 days from the date the request was mailed in which to respond to the complaint, with an additional 30 days afforded if the request was sent out of the country. Service is timely waived if the waiver is returned within the time specified in the request (30 days after the request was mailed, or 60 days if mailed out of the country) and before being formally served with process. Sometimes a plaintiff may attempt to serve a defendant with process while also sending the defendant a request for waiver of service; if the defendant executes the waiver of service within the time specified and before being served with process, it should have the longer time to respond afforded by waiving service. The date of sending the request is to be inserted by the plaintiff on the face of the request for waiver and on the waiver itself. This date is used to measure the return day for the waiver form, so that the plaintiff can know on a day certain whether formal service of process will be necessary; it is also a useful date to measure the time for answer when service is waived. The defendant who returns the waiver is given additional time for answer in order to assure that it loses nothing by waiving service of process. Committee Notes on Rules2000 Amendment Rule 12(a)(3)(B) is added to complement the addition of Rule 4(i)(2)(B). The purposes that underlie the requirement that service be made on the United States in an action that asserts individual liability of a United States officer or employee for acts occurring in connection with the performance of duties on behalf of the United States also require that the time to answer be extended to 60 days. Time is needed for the United States to determine whether to provide representation to the defendant officer or employee. If the United States provides representation, the need for an extended answer period is the same as in actions against the United States, a United States agency, or a United States officer sued in an official capacity. An action against a former officer or employee of the United States is covered by subparagraph (3)(B) in the same way as an action against a present officer or employee. Termination of the relationship between the individual defendant and the United States does not reduce the need for additional time to answer. GAP Report Committee Notes on Rules2007 Amendment The language of Rule 12 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 12(a)(4)(A) referred to an order that postpones disposition of a motion until the trial on the merits. Rule 12(a)(4) now refers to postponing disposition until trial. The new expression avoids the ambiguity that inheres in trial on the merits, which may become confusing when there is a separate trial of a single issue or another event different from a single all-encompassing trial. Changes Made After Publication and Comment Committee Notes on Rules2009 Amendment The times set in the former rule at 10 or 20 days have been revised to 14 or 21 days. See the Note to Rule 6. Rule 13. Counterclaim and Crossclaim (a) Compulsory Counterclaim. (1)  In General. (A) arises out of the transaction or occurrence that is the subject matter of the opposing partys claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. (2)  Exceptions. (A) when the action was commenced, the claim was the subject of another pending action; or (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule. (b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. (c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party. (d) Counterclaim Against the United States. These rules do not expand the right to assert a counterclaimor to claim a creditagainst the United States or a United States officer or agency. (e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. (f)  [Abrogated.] (g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. (h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim. (i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing partys claims have been dismissed or otherwise resolved. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 1. This is substantially [former] Equity Rule 30 (AnswerContentsCounterclaim), broadened to include legal as well as equitable counterclaims. 2. Compare the English practice, English Rules Under the Judicature Act Beddall v. Maitland 3. Certain States have also adopted almost unrestricted provisions concerning both the subject matter of and the parties to a counterclaim. This seems to be the modern tendency. Ark.Civ.Code (Crawford, 1934)  117 (as amended) and 118; N.J.Comp.Stat. (2 Cum.Supp. 19111924), N.Y.C.P.A. (1937)  262, 266, 267 (all as amended, Laws of 1936, ch. 324), 268, 269, and 271; Wis.Stat. (1935)  263.14 (1)(c). 4. Most codes do not expressly provide for a counterclaim in the reply. Clark, Code Pleading 5. The provisions of this rule respecting counterclaims are subject to Rule 82 (Jurisdiction and Venue Unaffected). For a discussion of Federal jurisdiction and venue in regard to counterclaims and cross-claims, see Shulman and Jaegerman, Some Jurisdictional Limitations in Federal Procedure 6. This rule does not affect such statutes of the United States as U.S.C., Title 28,  41(1) [now 1332, 1345, 1359] (United States as plaintiff; civil suits at common law and in equity), relating to assigned claims in actions based on diversity of citizenship. 7. If the action proceeds to judgment without the interposition of a counterclaim as required by subdivision (a) of this rule, the counterclaim is barred. See American Mills Co. v. American Surety Co Marconi Wireless Telegraph Co. v. National Electric Signalling Co Federal Equity Rules Federal Practice 8. For allowance of credits against the United States see U.S.C., Title 26,  16721673 [see 7442] (Suits for refunds of internal revenue taxeslimitations); U.S.C., Title 28,  774 [now 2406] (Suits by United States against individuals; credits), [former] 775 (Suits under postal laws; credits); U.S.C., Title 31,  227 [now 3728] (Offsets against judgments and claims against United States). Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) e The removal of the phrase not the subject of a pending action and the addition of the new clause at the end of the subdivision is designed to eliminate the ambiguity noted in Prudential Insurance Co. of America v. Saxe Subdivision (g) Subdivision (h) Notes of Advisory Committee on Rules1963 Amendment When a defendant, if he desires to defend his interest in property, is obliged to come in and litigate in a court to whose jurisdiction he could not ordinarily be subjected, fairness suggests that he should not be required to assert counterclaims, but should rather be permitted to do so at his election. If, however, he does elect to assert a counterclaim, it seems fair to require him to assert any other which is compulsory within the meaning of Rule 13(a). Clause (2), added by amendment to Rule 13(a), carries out this idea. It will apply to various cases described in Rule 4(e), as amended, where service is effected through attachment or other process by which the court does not acquire jurisdiction to render a personal judgment against the defendant. Clause (2) will also apply to actions commenced in State courts jurisdictionally grounded on attachment or the like, and removed to the Federal courts. Notes of Advisory Committee on Rules1966 Amendment Rule 13(h), dealing with the joinder of additional parties to a counterclaim or cross-claim, has partaken of some of the textual difficulties of Rule 19 on necessary joinder of parties. See Advisory Committees Note to Rule 19, as amended; cf. 3 Moores Federal Practice Federal Practice and Procedure The amendment of Rule 13(h) supplies the latter omission by expressly referring to Rule 20, as amended, and also incorporates by direct reference the revised criteria and procedures of Rule 19, as amended. Hereafter, for the purpose of determining who must or may be joined as additional parties to a counterclaim or cross-claim, the party pleading the claim is to be regarded as a plaintiff and the additional parties as plaintiffs or defendants as the case may be, and amended Rules 19 and 20 are to be applied in the usual fashion. See also Rules 13(a) (compulsory counterclaims) and 22 (interpleader). The amendment of Rule 13(h), like the amendment of Rule 19, does not attempt to regulate Federal jurisdiction or venue. See Rule 82. It should be noted, however, that in some situations the decisional law has recognized ancillary Federal jurisdiction over counterclaims and cross-claims and ancillary venue as to parties to these claims. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 13 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The meaning of former Rule 13(b) is better expressed by deleting not arising out of the transaction or occurrence that is the subject matter of the opposing partys claim. Both as a matter of intended meaning and current practice, a party may state as a permissive counterclaim a claim that does grow out of the same transaction or occurrence as an opposing partys claim even though one of the exceptions in Rule 13(a) means the claim is not a compulsory counterclaim. Committee Notes on Rules2009 Amendment Rule 13(f) is deleted as largely redundant and potentially misleading. An amendment to add a counterclaim will be governed by Rule 15. Rule 15(a)(1) permits some amendments to be made as a matter of course or with the opposing partys written consent. When the courts leave is required, the reasons described in Rule 13(f) for permitting amendment of a pleading to add an omitted counterclaim sound different from the general amendment standard in Rule 15(a)(2), but seem to be administeredas they should beaccording to the same standard directing that leave should be freely given when justice so requires. The independent existence of Rule 13(f) has, however, created some uncertainty as to the availability of relation back of the amendment under Rule 15(c). See 6 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 2d,  1430 (1990) Rule 14. Third-Party Practice (a) When a Defending Party May Bring in a Third Party. (1)  Timing of the Summons and Complaint. (2)  Third-Party Defendants Claims and Defenses. (A) must assert any defense against the third-party plaintiffs claim under Rule 12; (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g); (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiffs claim; and (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff. (3)  Plaintiffs Claims Against a Third-Party Defendant. (4)  Motion to Strike, Sever, or Try Separately. (5)  Third-Party Defendants Claim Against a Nonparty. (6)  Third-Party Complaint In Rem. (b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so. (c) Admiralty or Maritime Claim. (1)  Scope of Impleader. (2)  Defending Against a Demand for Judgment for the Plaintiff. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 17, 2000 Dec. 1, 2000 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 Third-party impleader is in some aspects a modern innovation in law and equity although well known in admiralty. Because of its many advantages a liberal procedure with respect to it has developed in England, in the Federal admiralty courts, and in some American State jurisdictions. See English Rules Under the Judicature Act Lottman v. Cuilla Legislative Loss Distribution in Negligence Actions Some Jurisdictional Limitations on Federal Procedure Third-party impleader under the conformity act has been applied in actions at law in the Federal courts. Lowry and Co., Inc., v. National City Bank of New York Yellow Cab Co. of Philadelphia v. Rodgers Notes of Advisory Committee on Rules1946 Amendment The provisions in Rule 14(a) which relate to the impleading of a third party who is or may be liable to the plaintiff have been deleted by the proposed amendment. It has been held that under Rule 14(a) the plaintiff need not amend his complaint to state a claim against such third party if he does not wish to do so. Satink v. Holland Township Connelly v. Bender Whitmire v. Partin v. Milton Crim v. Lumbermens Mutual Casualty Co Carbola Chemical Co., Inc. v. Trundle Roadway Express, Inc. v. Automobile Ins. Co. of Hartford, Conn. v. Providence Washington Ins. Co Delano v. Ives Satink v. Holland Township, supra; Malkin v. Arundel Corp Suggestions for Changes in the Federal Rules of Civil Procedure cf. Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co Hoskie v. Prudential Ins. Co. of America v. Lorrac Real Estate Corp Johnson v. G. J. Sherrard Co. v. New England Telephone & Telegraph Co Thompson v. Cranston Friend v. Middle Atlantic Transportation Co Herrington v. Jones Banks v. Employers Liability Assurance Corp. v. Central Surety & Ins. Corp Saunders v. Baltimore & Ohio R. Co Hull v. United States Rubber Co. v. Johnson Larsen & Co People of State of Illinois for use of Trust Co. of Chicago v. Maryland Casualty Co Contra: Sklar v. Hayes v. Singer Amendment of Plaintiffs Pleading to Assert Claim Against Third-Party Defendant Federal Jurisdiction in Third-Party Practice Some Problems Under Federal Third-Party Practice Moores Federal Practice The third sentence of Rule 14(a) has been expanded to clarify the right of the third-party defendant to assert any defenses which the third-party plaintiff may have to the plaintiffs claim. This protects the impleaded third-party defendant where the third-party plaintiff fails or neglects to assert a proper defense to the plaintiffs action. A new sentence has also been inserted giving the third-party defendant the right to assert directly against the original plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff. This permits all claims arising out of the same transaction or occurrence to be heard and determined in the same action. See Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co The sentence reading The third-party defendant is bound by the adjudication of the third-party plaintiffs liability to the plaintiff, as well as of his own to the plaintiff, or to the third-party plaintiff has been stricken from Rule 14(a), not to change the law, but because the sentence states a rule of substantive law which is not within the scope of a procedural rule. It is not the purpose of the rules to state the effect of a judgment. The elimination of the words the third-party plaintiff, or any other party from the second sentence of Rule 14(a), together with the insertion of the new phrases therein, are not changes of substance but are merely for the purpose of clarification. Notes of Advisory Committee on Rules1963 Amendment Under the amendment of the initial sentences of the subdivision, a defendant as a third-party plaintiff may freely and without leave of court bring in a third-party defendant if he files the third-party complaint not later than 10 days after he serves his original answer. When the impleader comes so early in the case, there is little value in requiring a preliminary ruling by the court on the propriety of the impleader. After the third-party defendant is brought in, the court has discretion to strike the third-party claim if it is obviously unmeritorious and can only delay or prejudice the disposition of the plaintiffs claim, or to sever the third-party claim or accord it separate trial if confusion or prejudice would otherwise result. This discretion, applicable not merely to the cases covered by the amendment where the third-party defendant is brought in without leave, but to all impleaders under the rule, is emphasized in the next-to-last sentence of the subdivision, added by amendment. In dispensing with leave of court for an impleader filed not later than 10 days after serving the answer, but retaining the leave requirement for impleaders sought to be effected thereafter, the amended subdivision takes a moderate position on the lines urged by some commentators, see Note, 43 Minn.L.Rev. 115 (1958); cf. Pa.R.Civ.P. 225253 (60 days after service on the defendant); Minn.R.Civ.P. 14.01 (45 days). Other commentators would dispense with the requirement of leave regardless of the time when impleader is effected, and would rely on subsequent action by the court to dismiss the impleader if it would unduly delay or complicate the litigation or would be otherwise objectionable. See 1A Barron & Holtzoff, Federal Practice & Procedure 64950 (Wright ed. 1960); Comment, 58 Colum.L.Rev. 532, 546 (1958); cf. N.Y.Civ.Prac. Act  193a; Me.R.Civ.P. 14. The amended subdivision preserves the value of a preliminary screening, through the leave procedure, of impleaders attempted after the 10-day period. The amendment applies also when an impleader is initiated by a third-party defendant against a person who may be liable to him, as provided in the last sentence of the subdivision. Notes of Advisory Committee on Rules1966 Amendment Rule 14 was modeled on Admiralty Rule 56. An important feature of Admiralty Rule 56 was that it allowed impleader not only of a person who might be liable to the defendant by way of remedy over, but also of any person who might be liable to the plaintiff. The importance of this provision was that the defendant was entitled to insist that the plaintiff proceed to judgment against the third-party defendant. In certain cases this was a valuable implementation of a substantive right. For example, in a case of ship collision where a finding of mutual fault is possible, one ship- owner, if sued alone, faces the prospect of an absolute judgment for the full amount of the damage suffered by an innocent third party; but if he can implead the owner of the other vessel, and if mutual fault is found, the judgment against the original defendant will be in the first instance only for a moiety of the damages; liability for the remainder will be conditioned on the plaintiffs inability to collect from the third-party defendant. This feature was originally incorporated in Rule 14, but was eliminated by the amendment of 1946, so that under the amended rule a third party could not be impleaded on the basis that he might be liable to the plaintiff. One of the reasons for the amendment was that the Civil Rule, unlike the Admiralty Rule, did not require the plaintiff to go to judgment against the third-party defendant. Another reason was that where jurisdiction depended on diversity of citizenship the impleader of an adversary having the same citizenship as the plaintiff was not considered possible. Retention of the admiralty practice in those cases that will be counterparts of a suit in admiralty is clearly desirable. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2000 Amendment Subdivisions (a) and (c) are amended to reflect revisions in Supplemental Rule C(6). GAP Report Committee Notes on Rules2006 Amendment Rule 14 is amended to conform to changes in designating the paragraphs of Supplemental Rule C(6). Committee Notes on Rules2007 Amendment The language of Rule 14 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 14 twice refers to counterclaims under Rule 13. In each case, the operation of Rule 13(a) depends on the state of the action at the time the pleading is filed. If plaintiff and third-party defendant have become opposing parties because one has made a claim for relief against the other, Rule 13(a) requires assertion of any counterclaim that grows out of the transaction or occurrence that is the subject matter of that claim. Rules 14(a)(2)(B) and (a)(3) reflect the distinction between compulsory and permissive counterclaims. A plaintiff should be on equal footing with the defendant in making third-party claims, whether the claim against the plaintiff is asserted as a counterclaim or as another form of claim. The limit imposed by the former reference to counterclaim is deleted. Committee Notes on Rules2009 Amendment The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 6. Rule 15. Amended and Supplemental Pleadings (a) Amendments Before Trial. (1)  Amending as a Matter of Course. (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2)  Other Amendments. (3)  Time to Respond. (b) Amendments During and After Trial. (1)  Based on an Objection at Trial. (2)  For Issues Tried by Consent. (c) Relation Back of Amendments. (1)  When an Amendment Relates Back. (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set outor attempted to be set outin the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper partys identity. (2)  Notice to the United States. (d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time. (As amended Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Pub. L. 102198,  11(a) Dec. 9, 1991 105 Stat. 1626 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1937 See generally for the present federal practice, [former] Equity Rules 19 (Amendments Generally), 28 (Amendment of Bill as of Course), 32 (Answer to Amended Bill), 34 (Supplemental Pleading), and 35 (Bills of Revivor and Supplemental BillsForm); U.S.C., Title 28,  399 [now 1653] (Amendments to show diverse citizenship) and [former] 777 (Defects of Form; amendments). See English Rules Under the Judicature Act Note to Subdivision (a) English Rules Under the Judicature Act Code Pleading Note to Subdivision (b) Note to Subdivision (c) Note to Subdivision (d) Notes of Advisory Committee on Rules1963 Amendment Rule 15(d) is intended to give the court broad discretion in allowing a supplemental pleading. However, some cases, opposed by other cases and criticized by the commentators, have taken the rigid and formalistic view that where the original complaint fails to state a claim upon which relief can be granted, leave to serve a supplemental complaint must be denied. See Bonner v. Elizabeth Arden, Inc Bowles v. Senderowitz Senderowitz v. Fleming LaSalle Nat. Bank v. 222 East Chestnut St. Corp Camilla Cotton Oil Co. v. Spencer Kellogg & Sons Genuth v. National Biscuit Co Moores Federal Practice Federal Practice & Procedure Under the amendment the court has discretion to permit a supplemental pleading despite the fact that the original pleading is defective. As in other situations where a supplemental pleading is offered, the court is to determine in the light of the particular circumstances whether filing should be permitted, and if so, upon what terms. The amendment does not attempt to deal with such questions as the relation of the statute of limitations to supplemental pleadings, the operation of the doctrine of laches, or the availability of other defenses. All these questions are for decision in accordance with the principles applicable to supplemental pleadings generally. Cf. Blau v. Lamb Lendonsol Amusement Corp. v. B. & Q. Assoc., Inc Notes of Advisory Committee on Rules1966 Amendment Rule 15(c) is amplified to state more clearly when an amendment of a pleading changing the party against whom a claim is asserted (including an amendment to correct a misnomer or misdescription of a defendant) shall relate back to the date of the original pleading. The problem has arisen most acutely in certain actions by private parties against officers or agencies of the United States. Thus an individual denied social security benefits by the Secretary of Health, Education, and Welfare may secure review of the decision by bringing a civil action against that officer within sixty days. 42 U.S.C.  405(g) (Supp. III, 1962). In several recent cases the claimants instituted timely action but mistakenly named as defendant the United States, the Department of HEW, the Federal Security Administration (a nonexistent agency), and a Secretary who had retired from the office nineteen days before. Discovering their mistakes, the claimants moved to amend their complaints to name the proper defendant; by this time the statutory sixty-day period had expired. The motions were denied on the ground that the amendment would amount to the commencement of a new proceeding and would not relate back in time so as to avoid the statutory provision * * * that suit be brought within sixty days * * * Cohn v. Federal Security Adm Cunningham v. United States Hall v. Department of HEW Sandridge v. Folsom, Secretary of HEW June 30, 1964 Simmons v. United States Dept. HEW Analysis in terms of new proceeding is traceable to Davis v. L. L. Cohen & Co Mellon v. Arkansas Land & Lumber Co Davis Mellon Relation back is intimately connected with the policy of the statute of limitations. The policy of the statute limiting the time for suit against the Secretary of HEW would not have been offended by allowing relation back in the situations described above. For the government was put on notice of the claim within the stated periodin the particular instances, by means of the initial delivery of process to a responsible government official (see Rule 4(d)(4) and (5). In these circumstances, characterization of the amendment as a new proceeding is not responsive to the realty, but is merely question-begging; and to deny relation back is to defeat unjustly the claimants opportunity to prove his case. See the full discussion by Byse, Suing the Wrong Defendant in Judicial Review of Federal Administrative Action: Proposals for Reform Much the same question arises in other types of actions against the government (see Byse Federal Practice & Procedure Moores Federal Practice Change in Party After Statute of Limitations Has Run The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs. Also relevant is the amendment of Rule 17(a) (real party in interest). To avoid forfeitures of just claims, revised Rule 17(a) would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment The rule has been revised to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense. Paragraph (c)(1) Walker v. Armco Steel Corp E.g., Board of Regents v. Tomanio E.g., West v. Conrail, Inc Burlington Northern R. Co. v. Woods Stewart Organization v. Ricoh Marshall v. Mulrenin Schiavone v. Fortune Paragraph (c)(3) Schiavone v. Fortune, supra Schiavone v. Fortune An Un-Fortune-ate Illustration of the Supreme Courts Role as Interpreter of the Federal Rules of Civil Procedure Outrageous Fortune: The Case for Amending Rule 15(c) Again The Excessive History of Federal Rule 15(c) and Its Lessons for Civil Rules Revision In allowing a name-correcting amendment within the time allowed by Rule 4(m), this rule allows not only the 120 days specified in that rule, but also any additional time resulting from any extension ordered by the court pursuant to that rule, as may be granted, for example, if the defendant is a fugitive from service of the summons. This revision, together with the revision of Rule 4(i) with respect to the failure of a plaintiff in an action against the United States to effect timely service on all the appropriate officials, is intended to produce results contrary to those reached in Gardner v. Gartman Rys v. U.S. Postal Service Martins Food & Liquor, Inc. v. U.S. Dept. of Agriculture But cf. Montgomery v. United States Postal Service Warren v. Department of the Army Miles v. Department of the Army Barsten v. Department of the Interior Brown v. Georgia Dept. of Revenue Congressional Modification of Proposed 1991 Amendment Section 11(a) of Pub. L. 102198 section 2074 of this title Dec. 1, 1991 Notes of Advisory Committee on Rules1993 Amendment The amendment conforms the cross reference to Rule 4 to the revision of that rule. Committee Notes on Rules2007 Amendment The language of Rule 15 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 15(c)(3)(A) called for notice of the institution of the action. Rule 15(c)(1)(C)(i) omits the reference to institution as potentially confusing. What counts is that the party to be brought in have notice of the existence of the action, whether or not the notice includes details as to its institution. Committee Notes on Rules2009 Amendment Rule 15(a)(1) is amended to make three changes in the time allowed to make one amendment as a matter of course. Former Rule 15(a) addressed amendment of a pleading to which a responsive pleading is required by distinguishing between the means used to challenge the pleading. Serving a responsive pleading terminated the right to amend. Serving a motion attacking the pleading did not terminate the right to amend, because a motion is not a pleading as defined in Rule 7. The right to amend survived beyond decision of the motion unless the decision expressly cut off the right to amend. The distinction drawn in former Rule 15(a) is changed in two ways. First, the right to amend once as a matter of course terminates 21 days after service of a motion under Rule 12(b), (e), or (f). This provision will force the pleader to consider carefully and promptly the wisdom of amending to meet the arguments in the motion. A responsive amendment may avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim. It also should advance other pretrial proceedings. Second, the right to amend once as a matter of course is no longer terminated by service of a responsive pleading. The responsive pleading may point out issues that the original pleader had not considered and persuade the pleader that amendment is wise. Just as amendment was permitted by former Rule 15(a) in response to a motion, so the amended rule permits one amendment as a matter of course in response to a responsive pleading. The right is subject to the same 21-day limit as the right to amend in response to a motion. The 21-day periods to amend once as a matter of course after service of a responsive pleading or after service of a designated motion are not cumulative. If a responsive pleading is served after one of the designated motions is served, for example, there is no new 21-day period. Finally, amended Rule 15(a)(1) extends from 20 to 21 days the period to amend a pleading to which no responsive pleading is allowed and omits the provision that cuts off the right if the action is on the trial calendar. Rule 40 no longer refers to a trial calendar, and many courts have abandoned formal trial calendars. It is more effective to rely on scheduling orders or other pretrial directions to establish time limits for amendment in the few situations that otherwise might allow one amendment as a matter of course at a time that would disrupt trial preparations. Leave to amend still can be sought under Rule 15(a)(2), or at and after trial under Rule 15(b). Abrogation of Rule 13(f) establishes Rule 15 as the sole rule governing amendment of a pleading to add a counterclaim. Amended Rule 15(a)(3) extends from 10 to 14 days the period to respond to an amended pleading. Committee Notes on Rules2023 Amendment Rule 15(a)(1) is amended to substitute no later than for within to measure the time allowed to amend once as a matter of course. A literal reading of within would lead to an untoward practice if a pleading is one to which a responsive pleading is required and neither a responsive pleading nor one of the Rule 12 motions has been served within 21 days after service of the pleading. Under this reading, the time to amend once as a matter of course lapses 21 days after the pleading is served and is revived only on the later service of a responsive pleading or one of the Rule 12 motions. There is no reason to suspend the right to amend in this way. No later than makes it clear that the right to amend continues without interruption until 21 days after the earlier of the events described in Rule 15(a)(1)(B). Amendment by Public Law 1991Subd. (c)(3). Pub. L. 102198 Rule 16. Pretrial Conferences; Scheduling; Management (a) Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as: (1) expediting disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through more thorough preparation; and (5) facilitating settlement. (b) Scheduling. (1)  Scheduling Order. (A) after receiving the parties report under Rule 26(f); or (B) after consulting with the parties attorneys and any unrepresented parties at a scheduling conference. (2)  Time to Issue. (3)  Contents of the Order. (A)  Required Contents. (B)  Permitted Contents. (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1); (ii) modify the extent of discovery; (iii) provide for disclosure, 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. (4)  Modifying a Schedule. (c) Attendance and Matters for Consideration at a Pretrial Conference. (1)  Attendance. (2)  Matters for Consideration. (A) formulating and simplifying the issues, and eliminating frivolous claims or defenses; (B) amending the pleadings if necessary or desirable; (C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; (D) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence 702; (E) determining the appropriateness and timing of summary adjudication under Rule 56; (F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37; (G) identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial; (H) referring matters to a magistrate judge or a master; (I) settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule; (J) determining the form and content of the pretrial order; (K) disposing of pending motions; (L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; (M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue; (N) ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c); (O) establishing a reasonable limit on the time allowed to present evidence; and (P) facilitating in other ways the just, speedy, and inexpensive disposition of the action. (d) Pretrial Orders. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it. (e) Final Pretrial Conference and Orders. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice. (f) Sanctions. (1)  In General. (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participateor does not participate in good faithin the conference; or (C) fails to obey a scheduling or other pretrial order. (2)  Imposing Fees and Costs. (As amended Apr. 28, 1983 Aug. 1, 1983 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 29, 2015 Dec. 1, 2015  Notes of Advisory Committee on Rules1937 1. Similar rules of pre-trial procedure are now in force in Boston, Cleveland, Detroit, and Los Angeles, and a rule substantially like this one has been proposed for the urban centers of New York state. For a discussion of the successful operation of pre-trial procedure in relieving the congested condition of trial calendars of the courts in such cities and for the proposed New York plan, see A Proposal for Minimizing Calendar Delay in Jury Cases Pre-Trial Procedure and Administration Report of the Commission on the Administration of Justice in New York State Pre-Trial Procedure in the Wayne Circuit Court The Theory and Practice of Pre-Trial Procedure English Rules Under the Judicature Act 2. Compare the similar procedure under Rule 56(d) (Summary JudgmentCase Not Fully Adjudicated on Motion). Rule 12(g) (Consolidation of Motions), by requiring to some extent the consolidation of motions dealing with matters preliminary to trial, is a step in the same direction. In connection with clause (5) of this rule, see Rules 53(b) (Masters; Reference) and 53(e)(3) (Masters Report; In Jury Actions). Notes of Advisory Committee on Rules1983 Amendment Introduction Rule 16 has not been amended since the Federal Rules were promulgated in 1938. In many respects, the rule has been a success. For example, there is evidence that pretrial conferences may improve the quality of justice rendered in the federal courts by sharpening the preparation and presentation of cases, tending to eliminate trial surprise, and improving, as well as facilitating, the settlement process. See 6 Wright & Miller, Federal Practice and Procedure: Civil Report of the National Commission for the Review of Antitrust Laws and Procedures Major criticism of Rule 16 has centered on the fact that its application can result in over-regulation of some cases and under-regulation of others. In simple, run-of-the-mill cases, attorneys have found pretrial requirements burdensome. It is claimed that over-administration leads to a series of mini-trials that result in a waste of an attorneys time and needless expense to a client. Pollack, Pretrial Procedures More Effectively Handled Four sources of criticism of pretrial have been identified. First, conferences often are seen as a mere exchange of legalistic contentions without any real analysis of the particular case. Second, the result frequently is nothing but a formal agreement on minutiae. Third, the conferences are seen as unnecessary and time-consuming in cases that will be settled before trial. Fourth, the meetings can be ceremonial and ritualistic, having little effect on the trial and being of minimal value, particularly when the attorneys attending the sessions are not the ones who will try the case or lack authority to enter into binding stipulations. See generally McCargo v. Hedrick Pretrial Procedures More Effectively Handled The Pretrial Conference and Effective Justice There also have been difficulties with the pretrial orders that issue following Rule 16 conferences. When an order is entered far in advance of trial, some issues may not be properly formulated. Counsel naturally are cautious and often try to preserve as many options as possible. If the judge who tries the case did not conduct the conference, he could find it difficult to determine exactly what was agreed to at the conference. But any insistence on a detailed order may be too burdensome, depending on the nature or posture of the case. Given the significant changes in federal civil litigation since 1938 that are not reflected in Rule 16, it has been extensively rewritten and expanded to meet the challenges of modern litigation. Empirical studies reveal that when a trial judge intervenes personally at an early stage to assume judicial control over a case and to schedule dates for completion by the parties of the principal pretrial steps, the case is disposed of by settlement or trial more efficiently and with less cost and delay than when the parties are left to their own devices. Flanders, Case Management and Court Management in United States District Courts Discussion Subdivision (a); Pretrial Conferences; Objectives Subdivision (b); Scheduling and Planning e.g Although a mandatory scheduling order encourages the court to become involved in case management early in the litigation, it represents a degree of judicial involvement that is not warranted in many cases. Thus, subdivision (b) permits each district court to promulgate a local rule under Rule 83 exempting certain categories of cases in which the burdens of scheduling orders exceed the administrative efficiencies that would be gained. See Eastern District of Virginia, Local Rule 12(1). Logical candidates for this treatment include social security disability matters, habeas corpus petitions, forfeitures, and reviews of certain administrative actions. A scheduling conference may be requested either by the judge, a magistrate when authorized by district court rule, or a party within 120 days after the summons and complaint are filed. If a scheduling conference is not arranged within that time and the case is not exempted by local rule, a scheduling order must be issued under Rule 16(b), after some communication with the parties, which may be by telephone or mail rather than in person. The use of the term judge in subdivision (b) reflects the Advisory Committees judgment that is it preferable that this task should be handled by a district judge rather than a magistrate, except when the magistrate is acting under 28 U.S.C.  636(c). While personal supervision by the trial judge is preferred, the rule, in recognition of the impracticality or difficulty of complying with such a requirement in some districts, authorizes a district by local rule to delegate the duties to a magistrate. In order to formulate a practicable scheduling order, the judge, or a magistrate when authorized by district court rule, and attorneys are required to develop a timetable for the matters listed in Rule 16(b)(1)(3). As indicated in Rule 16(b)(4)(5), the order may also deal with a wide range of other matters. The rule is phrased permissively as to clauses (4) and (5), however, because scheduling these items at an early point may not be feasible or appropriate. Even though subdivision (b) relates only to scheduling, there is no reason why some of the procedural matters listed in Rule 16(c) cannot be addressed at the same time, at least when a scheduling conference is held. Item (1) assures that at some point both the parties and the pleadings will be fixed, by setting a time within which joinder of parties shall be completed and the pleadings amended. Item (2) requires setting time limits for interposing various motions that otherwise might be used as stalling techniques. Item (3) deals with the problem of procrastination and delay by attorneys in a context in which scheduling is especially importantdiscovery. Scheduling the completion of discovery can serve some of the same functions as the conference described in Rule 26(f). Item (4) refers to setting dates for conferences and for trial. Scheduling multiple pretrial conferences may well be desirable if the case is complex and the court believes that a more elaborate pretrial structure, such as that described in the Manual for Complex Litigation As long as the case is not exempted by local rule, the court must issue a written scheduling order even if no scheduling conference is called. The order, like pretrial orders under the former rule and those under new Rule 16(c), normally will control the subsequent course of the action. See Rule 16(e). After consultation with the attorneys for the parties and any unrepresented partiesa formal motion is not necessarythe court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension. Since the scheduling order is entered early in the litigation, this standard seems more appropriate than a manifest injustice or substantial hardship test. Otherwise, a fear that extensions will not be granted may encourage counsel to request the longest possible periods for completing pleading, joinder, and discovery. Moreover, changes in the courts calendar sometimes will oblige the judge or magistrate when authorized by district court rule to modify the scheduling order. The district courts undoubtedly will develop several prototype scheduling orders for different types of cases. In addition, when no formal conference is held, the court may obtain scheduling information by telephone, mail, or otherwise. In many instances this will result in a scheduling order better suited to the individual case than a standard order, without taking the time that would be required by a formal conference. Rule 16(b) assures that the judge will take some early control over the litigation, even when its character does not warrant holding a scheduling conference. Despite the fact that the process of preparing a scheduling order does not always bring the attorneys and judge together, the fixing of time limits serves to stimulate litigants to narrow the areas of inquiry and advocacy to those they believe are truly relevant and material. Time limits not only compress the amount of time for litigation, they should also reduce the amount of resources invested in litigation. Litigants are forced to establish discovery priorities and thus to do the most important work first. Report of the National Commission for the Review of Antitrust Laws and Procedures Thus, except in exempted cases, the judge or a magistrate when authorized by district court rule will have taken some action in every case within 120 days after the complaint is filed that notifies the attorneys that the case will Subdivision (c); Subjects to be Discussed at Pretrial Conferences Case Management and Court Management in United States District Courts Report of the National Commission for the Review of Antitrust Laws and Procedures The reference in Rule 16(c)(1) to formulation is intended to clarify and confirm the courts power to identify the litigable issues. It has been added in the hope of promoting efficiency and conserving judicial resources by identifying the real issues prior to trial, thereby saving time and expense for everyone. See generally Meadow Gold Prods. Co. v. Wright The timing of any attempt at issue formulation is a matter of judicial discretion. In relatively simple cases it may not be necessary or may take the form of a stipulation between counsel or a request by the court that counsel work together to draft a proposed order. Counsel bear a substantial responsibility for assisting the court in identifying the factual issues worthy of trial. If counsel fail to identify an issue for the court, the right to have the issue tried is waived. Although an order specifying the issues is intended to be binding, it may be amended at trial to avoid manifest injustice. See Rule 16(e). However, the rules effectiveness depends on the court employing its discretion sparingly. Clause (6) acknowledges the widespread availability and use of magistrates. The corresponding provision in the original rule referred only to masters and limited the function of the reference to the making of findings to be used as evidence in a case to be tried to a jury. The new text is not limited and broadens the potential use of a magistrate to that permitted by the Magistrates Act. Clause (7) explicitly recognizes that it has become commonplace to discuss settlement at pretrial conferences. Since it obviously eases crowded court dockets and results in savings to the litigants and the judicial system, settlement should be facilitated at as early a stage of the litigation as possible. Although it is not the purpose of Rule 16(b)(7) to impose settlement negotiations on unwilling litigants, it is believed that providing a neutral forum for discussing the subject might foster it. See Moores Federal Practice Federal Practice and Procedure: Civil Case Management and Court Management in the United States District Courts A settlement conference is appropriate at any time. It may be held in conjunction with a pretrial or discovery conference, although various objectives of pretrial management, such as moving the case toward trial, may not always be compatible with settlement negotiations, and thus a separate settlement conference may be desirable. See 6 Wright & Miller, Federal Practice and Procedure: Civil In addition to settlement, Rule 16(c)(7) refers to exploring the use of procedures other than litigation to resolve the dispute. This includes urging the litigants to employ adjudicatory techniques outside the courthouse. See, for example, the experiment described in Green, Marks & Olson, Settling Large Case Litigation: An Alternative Approach Rule 16(c)(10) authorizes the use of special pretrial procedures to expedite the adjudication of potentially difficult or protracted cases. Some district courts obviously have done so for many years. See Rubin, The Managed Calendar: Some Pragmatic Suggestions About Achieving the Just, Speedy and Inexpensive Determination of Civil Cases in Federal Courts Manual for Complex Litigation. The rule simply identifies characteristics that make a case a strong candidate for special treatment. The four mentioned are illustrative, not exhaustive, and overlap to some degree. But experience has shown that one or more of them will be present in every protracted or difficult case and it seems desirable to set them out. See Kendig, Procedures for Management of Non-Routine Cases The last sentence of subdivision (c) is new. See Wisconsin Civil Procedure Rule 802.11(2). It has been added to meet one of the criticisms of the present practice described earlier and insure proper preconference preparation so that the meeting is more than a ceremonial or ritualistic event. The reference to authority is not intended to insist upon the ability to settle the litigation. Nor should the rule be read to encourage the judge conducting the conference to compel attorneys to enter into stipulations or to make admissions that they consider to be unreasonable, that touch on matters that could not normally have been anticipated to arise at the conference, or on subjects of a dimension that normally require prior consultation with and approval from the client. Subdivision (d); Final Pretrial Conference only The Managed Calendar: Some Pragmatic Suggestions About Achieving the Just, Speedy and Inexpensive Determination of Civil Cases in Federal Courts At least one of the attorneys who will conduct the trial for each party must be present at the final pretrial conference. At this late date there should be no doubt as to which attorney or attorneys this will be. Since the agreements and stipulations made at this final conference will control the trial, the presence of lawyers who will be involved in it is especially useful to assist the judge in structuring the case, and to lead to a more effective trial. Subdivision (e); Pretrial Orders Federal Practice and Procedure: Civil Since the amended rule encourages more extensive pretrial management than did the original, two or more conferences may be held in many cases. The language of Rule 16(e) recognizes this possibility and the corresponding need to issue more than one pretrial order in a single case. Once formulated, pretrial orders should not be changed lightly; but total inflexibility is undesirable. See, e.g., Clark v. Pennsylvania R.R. Co Many local rules make the plaintiffs attorney responsible for drafting a proposed pretrial order, either before or after the conference. Others allow the court to appoint any of the attorneys to perform the task, and others leave it to the court. See Note, Pretrial Conference: A Critical Examination of Local Rules Adopted by Federal District Courts Handbook for Effective Pretrial Procedure Subdivision (f); Sanctions e.g., Link v. Wabash R. Co Admiral Theatre Corp. v. Douglas Theatre To reflect that existing practice, and to obviate dependence upon Rule 41(b) or the courts inherent power to regulate litigation, cf. Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers Sanctions Imposable for Violations of the Federal Rules of Civil Procedure Rule 16(f) incorporates portions of Rule 37(b)(2), which prescribes sanctions for failing to make discovery. This should facilitate application of Rule 16(f), since courts and lawyers already are familiar with the Rule 37 standards. Among the sanctions authorized by the new subdivision are: preclusion order, striking a pleading, staying the proceeding, default judgment, contempt, and charging a party, his attorney, or both with the expenses, including attorneys fees, caused by noncompliance. The contempt sanction, however, is only available for a violation of a court order. The references in Rule 16(f) are not exhaustive. As is true under Rule 37(b)(2), the imposition of sanctions may be sought by either the court or a party. In addition, the court has discretion to impose whichever sanction it feels is appropriate under the circumstances. Its action is reviewable under the abuse-of-discretion standard. See National Hockey League v. Metropolitan Hockey Club, Inc Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Subdivision (b) In many cases the scheduling order can and should be entered before this deadline. However, when setting a scheduling conference, the court should take into account the effect this setting will have in establishing deadlines for the parties to meet under revised Rule 26(f) and to exchange information under revised Rule 26(a)(1). While the parties are expected to stipulate to additional time for making their disclosures when warranted by the circumstances, a scheduling conference held before defendants have had time to learn much about the case may result in diminishing the value of the Rule 26(f) meeting, the parties proposed discovery plan, and indeed the conference itself. New paragraph (4) has been added to highlight that it will frequently be desirable for the scheduling order to include provisions relating to the timing of disclosures under Rule 26(a). While the initial disclosures required by Rule 26(a)(1) will ordinarily have been made before entry of the scheduling order, the timing and sequence for disclosure of expert testimony and of the witnesses and exhibits to be used at trial should be tailored to the circumstances of the case and is a matter that should be considered at the initial scheduling conference. Similarly, the scheduling order might contain provisions modifying the extent of discovery ( e.g The report from the attorneys concerning their meeting and proposed discovery plan, as required by revised Rule 26(f), should be submitted to the court before the scheduling order is entered. Their proposals, particularly regarding matters on which they agree, should be of substantial value to the court in setting the timing and limitations on discovery and should reduce the time of the court needed to conduct a meaningful conference under Rule 16(b). As under the prior rule, while a scheduling order is mandated, a scheduling conference is not. However, in view of the benefits to be derived from the litigants and a judicial officer meeting in person, a Rule 16(b) conference should, to the extent practicable, be held in all cases that will involve discovery. This subdivision, as well as subdivision (c)(8), also is revised to reflect the new title of United States Magistrate Judges pursuant to the Judicial Improvements Act of 1990. Subdivision (c) Paragraph (4) is revised to clarify that in advance of trial the court may address the need for, and possible limitations on, the use of expert testimony under Rule 702 of the Federal Rules of Evidence. Even when proposed expert testimony might be admissible under the standards of Rules 403 and 702 of the evidence rules, the court may preclude or limit such testimony if the cost to the litigantswhich may include the cost to adversaries of securing testimony on the same subjects by other expertswould be unduly expensive given the needs of the case and the other evidence available at trial. Paragraph (5) is added (and the remaining paragraphs renumbered) in recognition that use of Rule 56 to avoid or reduce the scope of trial is a topic that can, and often should, be considered at a pretrial conference. Renumbered paragraph (11) enables the court to rule on pending motions for summary adjudication that are ripe for decision at the time of the conference. Often, however, the potential use of Rule 56 is a matter that arises from discussions during a conference. The court may then call for motions to be filed. Paragraph (6) is added to emphasize that a major objective of pretrial conferences should be to consider appropriate controls on the extent and timing of discovery. In many cases the court should also specify the times and sequence for disclosure of written reports from experts under revised Rule 26(a)(2)(B) and perhaps direct changes in the types of experts from whom written reports are required. Consideration should also be given to possible changes in the timing or form of the disclosure of trial witnesses and documents under Rule 26(a)(3). Paragraph (9) is revised to describe more accurately the various procedures that, in addition to traditional settlement conferences, may be helpful in settling litigation. Even if a case cannot immediately be settled, the judge and attorneys can explore possible use of alternative procedures such as mini-trials, summary jury trials, mediation, neutral evaluation, and nonbinding arbitration that can lead to consensual resolution of the dispute without a full trial on the merits. The rule acknowledges the presence of statutes and local rules or plans that may authorize use of some of these procedures even when not agreed to by the parties. See 28 U.S.C.  473(a)(6), 473(b)(4), 65158; Section 104(b)(2), Pub. L. 101650 The amendment of paragraph (9) should be read in conjunction with the sentence added to the end of subdivision (c), authorizing the court to direct that, in appropriate cases, a responsible representative of the parties be present or available by telephone during a conference in order to discuss possible settlement of the case. The sentence refers to participation by a party or its representative. Whether this would be the individual party, an officer of a corporate party, a representative from an insurance carrier, or someone else would depend on the circumstances. Particularly in litigation in which governmental agencies or large amounts of money are involved, there may be no one with on-the-spot settlement authority, and the most that should be expected is access to a person who would have a major role in submitting a recommendation to the body or board with ultimate decision-making responsibility. The selection of the appropriate representative should ordinarily be left to the party and its counsel. Finally, it should be noted that the unwillingness of a party to be available, even by telephone, for a settlement conference may be a clear signal that the time and expense involved in pursuing settlement is likely to be unproductive and that personal participation by the parties should not be required. The explicit authorization in the rule to require personal participation in the manner stated is not intended to limit the reasonable exercise of the courts inherent powers, e.g., G. Heileman Brewing Co. v. Joseph Oat Corp New paragraphs (13) and (14) are added to call attention to the opportunities for structuring of trial under Rule 42 and under revised Rules 50 and 52. Paragraph (15) is also new. It supplements the power of the court to limit the extent of evidence under Rules 403 and 611(a) of the Federal Rules of Evidence, which typically would be invoked as a result of developments during trial. Limits on the length of trial established at a conference in advance of trial can provide the parties with a better opportunity to determine priorities and exercise selectivity in presenting evidence than when limits are imposed during trial. Any such limits must be reasonable under the circumstances, and ordinarily the court should impose them only after receiving appropriate submissions from the parties outlining the nature of the testimony expected to be presented through various witnesses, and the expected duration of direct and cross-examination. Committee Notes on Rules2006 Amendment The amendment to Rule 16(b) is designed to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur. Rule 26(f) is amended to direct the parties to discuss discovery of electronically stored information if such discovery is contemplated in the action. Form 35 is amended to call for a report to the court about the results of this discussion. In many instances, the courts involvement early in the litigation will help avoid difficulties that might otherwise arise. Rule 16(b) is also amended to include among the topics that may be addressed in the scheduling order any agreements that the parties reach to facilitate discovery by minimizing the risk of waiver of privilege or work-product protection. Rule 26(f) is amended to add to the discovery plan the parties proposal for the court to enter a case-management or other order adopting such an agreement. The parties may agree to various arrangements. For example, they may agree to initial provision of requested materials without waiver of privilege or protection to enable the party seeking production to designate the materials desired or protection for actual production, with the privilege review of only those materials to follow. Alternatively, they may agree that if privileged or protected information is inadvertently produced, the producing party may by timely notice assert the privilege or protection and obtain return of the materials without waiver. Other arrangements are possible. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial-preparation material. An order that includes the parties agreement may be helpful in avoiding delay and excessive cost in discovery. See Manual for Complex Litigation Changes Made After Publication and Comment The proposed changes from the published rule are set out below. [Omitted] Committee Notes on Rules2007 Amendment The language of Rule 16 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. When a party or its representative is not present, it is enough to be reasonably available by any suitable means, whether telephone or other communication device. Changes Made After Publication and Comment Committee Notes on Rules2015 Amendment The provision for consulting at a scheduling conference by telephone, mail, or other means is deleted. A scheduling conference is more effective if the court and parties engage in direct simultaneous communication. The conference may be held in person, by telephone, or by more sophisticated electronic means. The time to issue the scheduling order is reduced to the earlier of 90 days (not 120 days) after any defendant has been served, or 60 days (not 90 days) after any defendant has appeared. This change, together with the shortened time for making service under Rule 4(m), will reduce delay at the beginning of litigation. At the same time, a new provision recognizes that the court may find good cause to extend the time to issue the scheduling order. In some cases it may be that the parties cannot prepare adequately for a meaningful Rule 26(f) conference and then a scheduling conference in the time allowed. Litigation involving complex issues, multiple parties, and large organizations, public or private, may be more likely to need extra time to establish meaningful collaboration between counsel and the people who can supply the information needed to participate in a useful way. Because the time for the Rule 26(f) conference is geared to the time for the scheduling conference or order, an order extending the time for the scheduling conference will also extend the time for the Rule 26(f) conference. But in most cases it will be desirable to hold at least a first scheduling conference in the time set by the rule. Three items are added to the list of permitted contents in Rule 16(b)(3)(B). The order may provide for preservation of electronically stored information, a topic also added to the provisions of a discovery plan under Rule 26(f)(3)(C). Parallel amendments of Rule 37(e) recognize that a duty to preserve discoverable information may arise before an action is filed. The order also may include agreements incorporated in a court order under Evidence Rule 502 controlling the effects of disclosure of information covered by attorney-client privilege or work-product protection, a topic also added to the provisions of a discovery plan under Rule 26(f)(3)(D). Finally, the order may direct that before filing a motion for an order relating to discovery the movant must request a conference with the court. Many judges who hold such conferences find them an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion, but the decision whether to require such conferences is left to the discretion of the judge in each case. TITLE IV. PARTIES Rule 17. Plaintiff and Defendant; Capacity; Public Officers (a) Real Party in Interest. (1)  Designation in General. (A) an executor; (B) an administrator; (C) a guardian; (D) a bailee; (E) a trustee of an express trust; (F) a party with whom or in whose name a contract has been made for anothers benefit; and (G) a party authorized by statute. (2)  Action in the Name of the United States for Anothers Use or Benefit. (3)  Joinder of the Real Party in Interest. (b) Capacity to Sue or Be Sued. Capacity to sue or be sued is determined as follows: (1) for an individual who is not acting in a representative capacity, by the law of the individuals domicile; (2) for a corporation, by the law under which it was organized; and (3) for all other parties, by the law of the state where the court is located, except that: (A) a partnership or other unincorporated association with no such capacity under that states law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws; and (B) 28 U.S.C.  754 and 959(a) govern the capacity of a receiver appointed by a United States court to sue or be sued in a United States court. (c) Minor or Incompetent Person. (1)  With a Representative. (A) a general guardian; (B) a committee; (C) a conservator; or (D) a like fiduciary. (2)  Without a Representative. (d) Public Officers Title and Name. A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officers name be added. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 25, 1988 Aug. 1, 1988 Pub. L. 100690, title VII,  7049 Nov. 18, 1988 102 Stat. 4401 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) English Rules Under the Judicature Act Note to Subdivision (b) A New Federal Civil ProcedureII. Pleadings and Parties Coppedge v. Clinton David Luptons Sons Co. v. Automobile Club of America Puerto Rico v. Russell & Co United Mine Workers of America v. Coronado Coal Co Moffat Tunnel League v. United States Note to Subdivision (c) English Rules Under the Judicature Act Notes of Advisory Committee on Rules1946 Amendment The new matter [in subdivision (b)] makes clear the controlling character of Rule 66 regarding suits by or against a federal receiver in a federal court. Notes of Advisory Committee on Rules1948 Amendment Since the statute states the capacity of a federal receiver to sue or be sued, a repetitive statement in the rule is confusing and undesirable. Notes of Advisory Committee on Rules1966 Amendment The minor change in the text of the rule is designed to make it clear that the specific instances enumerated are not exceptions to, but illustrations of, the rule. These illustrations, of course, carry no negative implication to the effect that there are not other instances of recognition as the real party in interest of one whose standing as such may be in doubt. The enumeration is simply of cases in which there might be substantial doubt as to the issue but for the specific enumeration. There are other potentially arguable cases that are not excluded by the enumeration. For example, the enumeration states that the promisee in a contract for the benefit of a third party may sue as real party in interest; it does not say, because it is obvious, that the third-party beneficiary may sue (when the applicable law gives him that right.) The rule adds to the illustrative list of real parties in interest a baileemeaning, of course, a bailee suing on behalf of the bailor with respect to the property bailed. (When the possessor of property other than the owner sues for an invasion of the possessory interest he is the real party in interest.) The word bailee is added primarily to preserve the admiralty practice whereby the owner of a vessel as bailee of the cargo, or the master of the vessel as bailee of both vessel and cargo, sues for damage to either property interest or both. But there is no reason to limit such a provision to maritime situations. The owner of a warehouse in which household furniture is stored is equally entitled to sue on behalf of the numerous owners of the furniture stored. Cf. Gulf Oil Corp. v. Gilbert The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice. In its origin the rule concerning the real party in interest was permissive in purpose: it was designed to allow an assignee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata. This provision keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filedin both maritime and nonmaritime cases. See Levinson v. Deupree Link Aviation, Inc. v. Downs Levinson v. Deupree Link Aviation, Inc. v. Downs Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 17 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 17(d) incorporates the provisions of former Rule 25(d)(2), which fit better with Rule 17. Amendment by Public Law 1988Subd. (a). Pub. L. 100690 Apr. 25, 1988 Aug. 1, 1988 Rule 18. Joinder of Claims (a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. (b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money. (As amended Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) 2. This provision for joinder of actions has been patterned upon [former] Equity Rule 26 (Joinder of Causes of Action) and broadened to include multiple parties. Compare the English practice, English Rules Under the Judicature Act 3. The provisions of this rule for the joinder of claims are subject to Rule 82 (Jurisdiction and Venue Unaffected). For the jurisdictional aspects of joinder of claims, see Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure Note to Subdivision (b) Braun v. American Laundry Mach. Co Application of the Uniform Fraudulent Conveyance Act Notes of Advisory Committee on Rules1966 Amendment The Rules proceed upon the theory that no inconvenience can result from the joinder of any two or more matters in the pleadings, but only from trying two or more matters together which have little or nothing in common. Sunderland, The New Federal Rules Code Pleading The liberal policy regarding joinder of claims in the pleadings extends to cases with multiple parties. However, the language used in the second sentence of Rule 18(a)if the requirements of Rules 19 [necessary joinder of parties], 20 [permissive joinder of parties], and 22 [interpleader] are satisfiedhas led some courts to infer that the rules regulating joinder of parties are intended to carry back to Rule 18(a) and to impose some special limits on joinder of claims in multiparty cases. In particular, Rule 20(a) has been read as restricting the operation of Rule 18(a) in certain situations in which a number of parties have been permissively joined in an action. In Federal Housing Admr. v. Christianson Federal Practice & Procedure Moores Federal Practice If the courts view is followed, it becomes necessary to enter at the pleading stage into speculations about the exact relation between the claim sought to be joined against fewer than all the defendants properly joined in the action, and the claims asserted against all the defendants. Cf. Wright, Joinder of Claims and Parties Under Modern Pleading Rules Moores Federal Practice Developments in the LawMultiparty Litigation in the Federal Courts Relation Between Joinder of Parties and Joinder of Claims Rule 18(a) is now amended not only to overcome the Christianson decision and similar authority, but also to state clearly as a comprehensive proposition, that a party asserting a claim (an original claim, counterclaim, cross-claim, or third-party claim) may join as many claims as he has against an opposing party. See Noland Co., Inc. v. Graver Tank & Mfg. Co C. W. Humphrey Co. v. Security Alum. Co It is emphasized that amended Rule 18(a) deals only with pleading. As already indicated, a claim properly joined as a matter of pleading need not be proceeded with together with the other claim if fairness or convenience justifies separate treatment. Amended Rule 18(a), like the rule prior to amendment, does not purport to deal with questions of jurisdiction or venue which may arise with respect to claims properly joined as a matter of pleading. See Rule 82. See also the amendment of Rule 20(a) and the Advisory Committees Note thereto. Free joinder of claims and remedies is one of the basic purposes of unification of the admiralty and civil procedure. The amendment accordingly provides for the inclusion in the rule of maritime claims as well as those which are legal and equitable in character. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 18 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Modification of the obscure former reference to a claim heretofore cognizable only after another claim has been prosecuted to a conclusion avoids any uncertainty whether Rule 18(b)s meaning is fixed by retrospective inquiry from some particular date. Rule 19. Required Joinder of Parties (a) Persons Required to Be Joined if Feasible. (1)  Required Party. (A) in that persons absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the persons absence may: (i) as a practical matter impair or impede the persons ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. (2)  Joinder by Court Order. (3)  Venue. (b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: (1) the extent to which a judgment rendered in the persons absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the persons absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. (c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state: (1) the name, if known, of any person who is required to be joined if feasible but is not joined; and (2) the reasons for not joining that person. (d) Exception for Class Actions. This rule is subject to Rule 23. (As amended Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Independent Wireless Telegraph Co. v. Radio Corp. of America The joinder provisions of this rule are subject to Rule 82 (Jurisdiction and Venue Unaffected). Note to Subdivision (b) Camp v. Gress Note to Subdivision (c) Notes of Advisory Committee on Rules1966 Amendment General Considerations Whenever feasible, the persons materially interested in the subject of an actionsee the more detailed description of these persons in the discussion of new subdivision (a) belowshould be joined as parties so that they may be heard and a complete disposition made. When this comprehensive joinder cannot be accomplisheda situation which may be encountered in Federal courts because of limitations on service of process, subject matter jurisdiction, and venuethe case should be examined pragmatically and a choice made between the alternatives of proceeding with the action in the absence of particular interested persons, and dismissing the action. Even if the court is mistaken in its decision to proceed in the absence of an interested person, it does not by that token deprive itself of the power to adjudicate as between the parties already before it through proper service of process. But the court can make a legally binding adjudication only between the parties actually joined in the action. It is true that an adjudication between the parties before the court may on occasion adversely affect the absent person as a practical matter, or leave a party exposed to a later inconsistent recovery by the absent person. These are factors which should be considered in deciding whether the action should proceed, or should rather be dismissed; but they do not themselves negate the courts power to adjudicate as between the parties who have been joined. Defects in the Original Rule The foregoing propositions were well understood in the older equity practice, see Hazard, Indispensable Party: The Historical Origin of a Procedural Phantom Textual defects.(1) The expression persons * * * who ought to be parties if complete relief is to be accorded between those already parties, appearing in original subdivision (b), was apparently intended as a description of the persons whom it would be desirable to join in the action, all questions of feasibility of joinder being put to one side; but it was not adequately descriptive of those persons. (2) The word Indispensable, appearing in original subdivision (b), was apparently intended as an inclusive reference to the interested persons in whose absence it would be advisable, all factors having been considered, to dismiss the action. Yet the sentence implied that there might be interested persons, not indispensable. in whose absence the action ought also to be dismissed. Further, it seemed at least superficially plausible to equate the word indispensable with the expression having a joint interest, appearing in subdivision (a). See United States v. Washington Inst. of Tech., Inc Chidester v. City of Newark Compulsory Joinder of Parties in Civil Actions (3) The use of indispensable and joint interest in the context of original Rule 19 directed attention to the technical or abstract character of the rights or obligations of the persons whose joinder was in question, and correspondingly distracted attention from the pragmatic considerations which should be controlling. (4) The original rule, in dealing with the feasibility of joining a person as a party to the action, besides referring to whether the person was subject to the jurisdiction of the court as to both service of process and venue, spoke of whether the person could be made a party without depriving the court of jurisdiction of the parties before it. The second quoted expression used jurisdiction in the sense of the competence of the court over the subject matter of the action, and in this sense the expression was apt. However, by a familiar confusion, the expression seems to have suggested to some that the absence from the lawsuit of a person who was indispensable or who ought to be [a] part[y] itself deprived the court of the power to adjudicate as between the parties already joined. See Samuel Goldwyn, Inc. v. United Artists Corp McArthur v. Rosenbaum Co. of Pittsburgh Calcote v. Texas Pac. Coal & Oil Co Failure to point to correct basis of decision. The original rule did not state affirmatively what factors were relevant in deciding whether the action should proceed or be dismissed when joinder of interested persons was infeasible. In some instances courts did not undertake the relevant inquiry or were misled by the jurisdiction fallacy. In other instances there was undue preoccupation with abstract classifications of rights or obligations, as against consideration of the particular consequences of proceeding with the action and the ways by which these consequences might be ameliorated by the shaping of final relief or other precautions. Although these difficulties cannot be said to have been general analysis of the cases showed that there was good reason for attempting to strengthen the rule. The literature also indicated how the rule should be reformed. See Reed, supra (discussion of the important case of Shields v. Barrow Indispensable Parties in the Federal Courts Developments in the LawMultiparty Litigation in the Federal Courts Jan. 1, 1963 Sept. 1, 1963 The Amended Rule New subdivision (a) defines the persons whose joinder in the action is desirable. Clause (1) stresses the desirability of joining those persons in whose absence the court would be obliged to grant partial or hollow rather than complete relief to the parties before the court. The interests that are being furthered here are not only those of the parties, but also that of the public in avoiding repeated lawsuits on the same essential subject matter. Clause (2)(i) recognizes the importance of protecting the person whose joinder is in question against the practical prejudice to him which may arise through a disposition of the action in his absence. Clause (2)(ii) recognizes the need for considering whether a party may be left, after the adjudication, in a position where a person not joined can subject him to a double or otherwise inconsistent liability. See Reed, supra, 55 Mich.L.Rev. at 330, 338; Note, supra, 65 Harv.L.Rev. at 105257; Developments in the Law, supra, 71 Harv.L.Rev. at 88185. The subdivision (a) definition of persons to be joined is not couched in terms of the abstract nature of their interestsjoint, united, separable, or the like. See N.Y. Temporary Comm. on Courts, First Preliminary Report, supra; Developments in the Law, supra, at 880. It should be noted particularly, however, that the description is not at variance with the settled authorities holding that a tortfeasor with the usual joint-and-several liability is merely a permissive party to an action against another with like liability. See 3 Moores Federal Practice Federal Practice & Procedure If a person as described in subdivision (a)(1)(2) is amenable to service of process and his joinder would not deprive the court of jurisdiction in the sense of competence over the action, he should be joined as a party; and if he has not been joined, the court should order him to be brought into the action. If a party joined has a valid objection to the venue and chooses to assert it, he will be dismissed from the action. Subdivision (b).When a person as described in subdivision (a)(1)(2) cannot be made a party, the court is to determine whether in equity and good conscience the action should proceed among the parties already before it, or should be dismissed. That this decision is to be made in the light of pragmatic considerations has often been acknowledged by the courts. See Roos v. Texas Co Niles-Bement-Pond Co. v. Iron Moulders, Union The first factor brings in a consideration of what a judgment in the action would mean to the absentee. Would the absentee be adversely affected in a practical sense, and if so, would the prejudice be immediate and serious, or remote and minor? The possible collateral consequences of the judgment upon the parties already joined are also to be appraised. Would any party be exposed to a fresh action by the absentee, and if so, how serious is the threat? See the elaborate discussion in Reed, supra; cf. A. L. Smith Iron Co. v. Dickson Caldwell Mfg. Co. v. Unique Balance Co The second factor calls attention to the measures by which prejudice may be averted or lessened. The shaping of relief is a familiar expedient to this end. See, e.g., the award of money damages in lieu of specific relief where the latter might affect an absentee adversely. Ward v. Deavers Miller & Lux, Inc. v. Nickel Roos v. Texas Co Atwood v. Rhode Island Hosp. Trust Co Stumpf v. Fidelity Gas Co National Licorice Co. v. Labor Board Sometimes the party is himself able to take measures to avoid prejudice. Thus a defendant faced with a prospect of a second suit by an absentee may be in a position to bring the latter into the action by defensive interpleader. See Hudson v. Newell Gauss v. Kirk Abel v. Brayton Flying Service, Inc Parker Rust-Proof Co. v. Western Union Tel. Co Developments in the Law Intervention or Subsequent Joinder of Parties as Affecting Jurisdiction of Federal Court Based on Diversity of Citizenship Johnson v. Middleton Kentucky Nat. Gas Corp. v. Duggins McComb v. McCormack The third factorwhether an adequate judgment can be rendered in the absence of a given personcalls attention to the extent of the relief that can be accorded among the parties joined. It meshes with the other factors, especially the shaping of relief mentioned under the second factor. Cf. Kroese v. General Steel Castings Corp The fourth factor, looking to the practical effects of a dismissal, indicates that the court should consider whether there is any assurance that the plaintiff, if dismissed, could sue effectively in another forum where better joinder would be possible. See Fitzgerald v. Haynes Fouke v. Schenewerk Warfield v. Marks The subdivision uses the word indispensable only in a conclusory sense, that is, a person is regarded as indispensable when he cannot be made a party and, upon consideration of the factors above mention, it is determined that in his absence it would be preferable to dismiss the action, rather than to retain it. A person may be added as a party at any stage of the action on motion or on the courts initiative (see Rule 21); and a motion to dismiss, on the ground that a person has not been joined and justice requires that the action should not proceed in his absence, may be made as late as the trial on the merits (see Rule 12(h)(2), as amended; cf. Rule 12(b)(7), as amended). However, when the moving party is seeking dismissal in order to protect himself against a later suit by the absent person (subdivision (a)(2)(ii)), and is not seeking vicariously to protect the absent person against a prejudicial judgment (subdivision (a)(2)(i)), his undue delay in making the motion can properly be counted against him as a reason for denying the motion. A joinder question should be decided with reasonable promptness, but decision may properly be deferred if adequate information is not available at the time. Thus the relationship of an absent person to the action, and the practical effects of an adjudication upon him and others, may not be sufficiently revealed at the pleading stage; in such a case it would be appropriate to defer decision until the action was further advanced. Cf. Rule 12(d). The amended rule makes no special provision for the problem arising in suits against subordinate Federal officials where it has often been set up as a defense that some superior officer must be joined. Frequently this defense has been accompanied by or intermingled with defenses of sovereign community or lack of consent of the United States to suit. So far as the issue of joinder can be isolated from the rest, the new subdivision seems better adapted to handle it than the predecessor provision. See the discussion in Johnson v. Kirkland Shaughnessy v. Pedreiro P.L. 87748 76 Stat. 744 October 5, 1962 Subdivision (c) parallels the predecessor subdivision (c) of Rule 19. In some situations it may be desirable to advise a person who has not been joined of the fact that the action is pending, and in particular cases the court in its discretion may itself convey this information by directing a letter or other informal notice to the absentee. Subdivision (d) repeats the exception contained in the first clause of the predecessor subdivision (a). Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 19 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 19(b) described the conclusion that an action should be dismissed for inability to join a Rule 19(a) party by carrying forward traditional terminology: the absent person being thus regarded as indispensable. Rule 20. Permissive Joinder of Parties (a) Persons Who May Join or Be Joined. (1)  Plaintiffs. (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. (2)  Defendants. (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. (3)  Extent of Relief. (b) Protective Measures. The court may issue ordersincluding an order for separate trialsto protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. (As amended Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 The provisions for joinder here stated are in substance the provisions found in England, California, Illinois, New Jersey, and New York. They represent only a moderate expansion of the present federal equity practice to cover both law and equity actions. With this rule compare also [former] Equity Rules 26 (Joinder of Causes of Action), 37 (Parties GenerallyIntervention), 40 (Nominal Parties), and 42 (Joint and Several Demands). The provisions of this rule for the joinder of parties are subject to Rule 82 (Jurisdiction and Venue Unaffected). Note to Subdivision (a) English Rules Under the Judicature Act English Rules Under the Judicature Act Note to Subdivision (b) English Rules Under the Judicature Act Notes of Advisory Committee on Rules1966 Amendment See the amendment of Rule 18(a) and the Advisory Committees Note thereto. It has been thought that a lack of clarity in the antecedent of the word them, as it appeared in two places in Rule 20(a), contributed to the view, taken by some courts, that this rule limited the joinder of claims in certain situations of permissive party joinder. Although the amendment of Rule 18(a) should make clear that this view is untenable, it has been considered advisable to amend Rule 20(a) to eliminate any ambiguity. See 2 Barron & Holtzoff, Federal Practice & Procedure A basic purpose of unification of admiralty and civil procedure is to reduce barriers to joinder; hence the reference to any vessel, etc. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 20 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 21. Misjoinder and Nonjoinder of Parties  Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 See English Rules Under the Judicature Act For separate trials see Rules 13(i) (Counterclaims and Cross-Claims: Separate Trials; Separate Judgments), 20(b) (Permissive Joinder of Parties: Separate Trials), and 42(b) (Separate Trials, generally) and the note to the latter rule. Committee Notes on Rules2007 Amendment The language of Rule 21 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 22. Interpleader (a) Grounds. (1)  By a Plaintiff. (A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or (B) the plaintiff denies liability in whole or in part to any or all of the claimants. (2)  By a Defendant. (b) Relation to Other Rules and Statutes. This rule supplementsand does not limitthe joinder of parties allowed by Rule 20. The remedy this rule provides is in addition toand does not supersede or limitthe remedy provided by 28 U.S.C.  1335, 1397, and 2361. An action under those statutes must be conducted under these rules. (As amended Dec. 29, 1948 Oct. 20, 1949 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 The first paragraph provides for interpleader relief along the newer and more liberal lines of joinder in the alternative. It avoids the confusion and restrictions that developed around actions of strict interpleader and actions in the nature of interpleader. Compare John Hancock Mutual Life Insurance Co. v. Kegan et al The second paragraph allows an action to be brought under the recent interpleader statute when applicable. By this paragraph all remedies under the statute are continued, but the manner of obtaining them is in accordance with these rules. For temporary restraining orders and preliminary injunctions under this statute, see Rule 65(e). This rule substantially continues such statutory provisions as U.S.C., Title 38,  445 [now 1984] (Actions on claims; jurisdiction; parties; procedure; limitation; witnesses; definitions) (actions upon veterans contracts of insurance with the United States), providing for interpleader by the United States where it acknowledges indebtedness under a contract of insurance with the United States; U.S.C., Title 49,  97 [now 80110(e)] (Interpleader of conflicting claimants) (by carrier which has issued bill of lading). See Chafee, The Federal Interpleader Act of 1936: I and II Notes of Advisory Committee on Rules1948 Amendment The amendment substitutes the present statutory reference. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 22 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 23. Class Actions (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: (1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. (c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses. (1)  Certification Order. (A)  Time to Issue. (B)  Defining the Class; Appointing Class Counsel. (C)  Altering or Amending the Order. (2)  Notice. (A)  For (b)(1) or (b)(2) Classes. (B)  For (b)(3) Classes. (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). (3)  Judgment. (A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and (B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members. (4)  Particular Issues. (5)  Subclasses. (d) Conducting the Action. (1)  In General. (A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument; (B) requireto protect class members and fairly conduct the actiongiving appropriate notice to some or all class members of: (i) any step in the action; (ii) the proposed extent of the judgment; or (iii) the members opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action; (C) impose conditions on the representative parties or on intervenors; (D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or (E) deal with similar procedural matters. (2)  Combining and Amending Orders. (e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified classor a class proposed to be certified for purposes of settlementmay be settled, voluntarily dismissed, or compromised only with the courts 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. (B)  Grounds for a Decision to Give Notice. (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. (A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arms 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 proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorneys 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 equitably relative to each other. (3)  Identifying Agreements. (4)  New Opportunity to Be Excluded. (5)  Class-Member Objections. (A)  In General. (B)  Court Approval Required for Payment in Connection with an Objection. (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. (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). 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. (g) Class Counsel. (1)  Appointing Class Counsel. (A) must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsels experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsels knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class; (B) may consider any other matter pertinent to counsels ability to fairly and adequately represent the interests of the class; (C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorneys fees and nontaxable costs; (D) may include in the appointing order provisions about the award of attorneys fees or nontaxable costs under Rule 23(h); and (E) may make further orders in connection with the appointment. (2)  Standard for Appointing Class Counsel. (3)  Interim Counsel. (4)  Duty of Class Counsel. (h) Attorneys Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorneys fees and nontaxable costs that are authorized by law or by the parties agreement. The following procedures apply: (1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner. (2) A class member, or a party from whom payment is sought, may object to the motion. (3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a). (4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d)(2)(D). (As amended Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 24, 1998 Dec. 1, 1998 Mar. 27, 2003 Dec. 1, 2003 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft et seq Federal Class Actions Federal Class ActionsJurisdiction and Effect of Judgment Class Suits and the Federal Rules cf Cases on Trials, Judgments and Appeals Jurisdictional Amount in Representative Suits The general test of [former] Equity Rule 38 (Representatives of Class) that the question should be one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, is a common test. For states which require the two elements of a common or general interest and numerous persons, as provided for in [former] Equity Rule 38, see Del.Ch.Rule 113; Fla.Comp.Gen.Laws Ann. (Supp., 1936)  4918 (7); Georgia Code (1933)  371002, and see English Rules Under the Judicature Act Garfein v. Stiglitz The Common Questions Principle in the Code Provision for Representative Suits Representative Suits Involving Numerous Litigants Clause (1), Joint, Common, or Secondary Right Oster v. Brotherhood of Locomotive Firemen and Enginemen Pickett v. Walsh Colt v. Hicks United Mine Workers of America v. Coronado Coal Co Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft Smith v. Swormstedt Christopher, et al. v. Brusselback For an action to enforce rights held in common by policyholders against the corporate issuer of the policies, see Supreme Tribe of Ben Hur v. Cauble Terry v. Little John A. Roeblings Sons Co. v. Kinnicutt Typical of a secondary action is a suit by stockholders to enforce a corporate right. For discussion of the general nature of these actions see Ashwander v. Tennessee Valley Authority The Stockholders SuitCorporate and Individual Grievances Capacity of Plaintiff-Stockholder to Terminate a Stockholders Suit Subdivision (b) Clause (2) Clause (3) Everglades Drainage League v. Napoleon Broward Drainage Dist Gramling v. Maxwell Skinner v. Mitchell Duke of Bedford v. Ellis The Common Questions Principle in the Code Provision for Representative Suits Note to Subdivision (b) Hawes v. Oakland January 23, 1882 Note to Subdivision (c) Capacity of Plaintiff-Stockholder to Terminate a Stockholders Suit Notes of Advisory Committee on Rules1946 Amendment Subdivision (b), relating to secondary actions by shareholders, provides among other things, that in, such an action the complainant shall aver (1) that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law . . . As a result of the decision in Erie R. Co. v. Tompkins April 25, 1938 Erie R. Co. v. Tompkins The rule has a long history. In Hawes v. Oakland Swift v. Tyson Erie R. Co. v. Tompkins Hawes v. Oakland Following the decision in Hawes v. Oakland In City of Quincy v. Steel Hawes v. Oakland Some other cases dealing with [former] Equity Rules 94 or 27 prior to the decision in Erie R. Co. v. Tompkins Dimpfel v. Ohio & Miss. R. R Illinois Central R. Co. v. Adams Venner v. Great Northern Ry Jacobson v. General Motors Corp Hawes v. Oakland Those state decisions which held that a shareholder acquiring stock after the event may maintain a derivative action are founded on the view that it is a right belonging to the shareholder at the time of the transaction and which passes as a right to the subsequent purchaser. See Pollitz v. Gould The first case arising after the decision in Erie R. Co. v. Tompkins Summers v. Hearst Pollitz v. Gould He then concluded that, although the federal decisions treat the equity rule as stating a principle of substantive law, if [former] Equity Rule 27 is to be modified or revoked in view of Erie R. Co. v. Tompkins Some other federal decisions since 1938 touch the question. In Piccard v. Sperry Corporation Erie R. Co. v. Tompkins York v. Guaranty Trust Co. of New York Piccard In Gallup v. Caldwell In Mullins v. De Soto Securities Co In Toebelman v. Missouri-Kansas Pipe Line Co Erie R. Co. v. Tompkins In Perrott v. United States Banking Corp  It seems to me the rule does not go beyond procedure. * * * Simply because a particular plaintiff cannot qualify as a proper party to maintain such an action does not destroy or even whittle at the cause of action. The cause of action exists until a qualified plaintiff can get it started in a federal court. In Bankers Nat. Corp. v. Barr The New York rule, as stated in Pollitz v. Gould, supra April 9, 1944 April 9, 1944 Shielcrawt v. Moffett Noel Associates, Inc. v. Merrill Insofar as  61 is concerned, it has been held that the section is procedural in nature. Klum v. Clinton Trust Co Noel Associates, Inc. v. Merrill, supra Pollitz Klum v. Clinton Trust Co., supra Noel Associates, Inc. v. Merrill, supra With respect to  61b, which may be regarded as a separate problem ( Noel Associates, Inc. v. Merrill, supra Shielcrawt v. Moffett, supra Wolf v. Atkinson Citron v. Mangel Stores Corp The American Investor and the Constitutionality of Section 61B of the New York General Corporation Law New Jersey also enacted a statute, similar to Chapters 667 and 668 of the New York law. See P.L. 1945, Ch. 131, R.S.Cum.Supp. 14:315. The New Jersey provision similar to Chapter 668 ( 61b) differs, however, in that it specifically applies retroactively. It has been held that this provision is procedural and hence will not govern a pending action brought against a New Jersey corporation in the New York courts. Shielcrawt v. Moffett See also generally, 2 Moores Federal Practice The decisions here discussed show that the question is a debatable one, and that there is respectable authority for either view, with a recent trend towards the view that Rule 23(b)(1) is procedural. There is reason to say that the question is one which should not be decided by the Supreme Court ex parte The Advisory Committee is unanimously of the opinion that this course should be followed. If, however, the final conclusion is that the rule deals with a matter of substantive right, then the rule should be amended by adding a provision that Rule 23(b)(1) does not apply in jurisdictions where state law permits a shareholder to maintain a secondary action, although he was not a shareholder at the time of the transactions of which he complains. Notes of Advisory Committee on Rules1966 Amendment Difficulties with the original rule Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft In practice, the terms joint, common, etc., which were used as the basis of the Rule 23 classification proved obscure and uncertain. See Chaffee, Some Problems of Equity The Contemporary Function of the Class Suit Lee Defeats Ben Hur Developments in the Law: Multiparty Litigation in the Federal Courts Gullo v. Veterans Coop. H. Assn Shipley v. Pittsburgh & L. E. R. Co Deckert v. Independence Shares Corp Pennsylvania Co. for Ins. on Lives v. Deckert Nor did the rule provide an adequate guide to the proper extent of the judgments in class actions. First, we find instances of the courts classifying actions as true or intimating that the judgments would be decisive for the class where these results seemed appropriate but were reached by dint of depriving the word several of coherent meaning. See, e.g., System Federation No. 91 v. Reed Wilson v. City of Paducah Citizens Banking Co. v. Monticello State Bank Redmond v. Commerce Trust Co United States v. American Optical Co National Hairdressers & C. Assn. v. Philad. Co Knapp v. Bankers Sec. Corp Giesecke v. Denver Tramway Corp York v. Guaranty Trust Co Webster Eisenlohr, Inc. v. Kalodner Duke of Bedford v. Ellis Sheffield Waterworks v. Yeomans Brown v. Vermuden The spurious action envisaged by original Rule 23 was in any event an anomaly because, although denominated a class action and pleaded as such, it was supposed not to adjudicate the rights or liabilities of any person not a party. It was believed to be an advantage of the spurious category that it would invite decisions that a member of the class could, like a member of the class in a true or hybrid action, intervene on an ancillary basis without being required to show an independent basis of Federal jurisdiction, and have the benefit of the date of the commencement of the action for purposes of the statute of limitations. See 3 Moores Federal Practice Union Carbide & Carbon Corp. v. Nisley P. W. Husserl, Inc. v. Newman Athas v. Day Amen v. Black Wagner v. Kemper Finally, the original rule did not squarely address itself to the question of the measures that might be taken during the course of the action to assure procedural fairness, particularly giving notice to members of the class, which may in turn be related in some instances to the extension of the judgment to the class. See Chafee, supra, at 23031; Keeffe, Levy & Donovan, supra; Developments in the Law Binding Effect of Class Actions Federal Class Actions: A Suggested Revision of Rule 23 Jan. 1, 1963 The amended rule Subdivision (a) Revision of Procedure; Some Problems in Class Actions Federal Practice & Procedure Giordano v. Radio Corp. of Am Zachman v. Erwin Baim & Blank, Inc. v. Warren Connelly Co., Inc Subdivision (b)(1) Indispensable Party; The Historical Origin of a Procedural Phantom Moore Clause (A) The felt necessity for a class action is greatest when the courts are called upon to order or sanction the alteration of the status quo in circumstances such that a large number of persons are in a position to call on a single person to alter the status quo, or to complain if it is altered, and the possibility exists that [the] actor might be called upon to act in inconsistent ways. Pleading and Procedure; State and Federal Supreme Tribe of Ben-Hur v. Cauble Maricopa County Mun. Water Con. Dist. v. Looney Rank v. Krug State of California v. Rank Gart v. Cole Martinez v. Maverick Cty. Water Con. & Imp. Dist Moore Clause (B) Supreme Tribe of Ben-Hur v. Cauble Waybright v. Columbian Mut. Life Ins. Co Smith v. Swormstedt Knapp v. Bankers Securities Corp Giesecke v. Denver Tramway Corp Zahn v. Transamerica Corp Speed v. Transamerica Corp Sobel v. Whittier Corp Goldberg v. Whittier Corp Dann v. Studebaker-Packard Corp Edgerton v. Armour & Co Ames v. Mengel Co Bosenberg v. Chicago T. & T. Co Citizens Banking Co. v. Monticello State Bank Redmond v. Commerce Trust Co York v. Guaranty Trust Co In various situations an adjudication as to one or more members of the class will necessarily or probably have an adverse practical effect on the interests of other members who should therefore be represented in the lawsuit. This is plainly the case when claims are made by numerous persons against a fund insufficient to satisfy all claims. A class action by or against representative members to settle the validity of the claims as a whole, or in groups, followed by separate proof of the amount of each valid claim and proportionate distribution of the fund, meets the problem. Cf. Dickinson v. Burnham Hefferman v. Bennett & Armour City & County of San Francisco v. Market Street Ry United States v. Paramount Pictures, Inc Subdivision (b)(2) Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration. See Potts v. Flax Bailey v. Patterson Brunson v. Board of Trustees of School District No. 1, Clarendon City, S.C Green v. School Bd. of Roanoke, Va Orleans Parish School Bd. v. Bush Mannings v. Board of Public Inst. of Hillsborough County, Fla Northcross v. Board of Ed. of City of Memphis Frasier v. Board of Trustees of Univ. of N.C Subdivision (b)(3) The court is required to find, as a condition of holding that a class action may be maintained under this subdivision, that the questions common to the class predominate over the questions affecting individual members. It is only where this predominance exists that economies can be achieved by means of the class-action device. In this view, a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class. On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representation made or in the kinds or degrees of reliance by the persons to whom they were addressed. See Oppenheimer v. F. J. Young & Co., Inc Miller v. National City Bank of N.Y Hughes v. Encyclopaedia Brittanica Sturgeon v. Great Lakes Steel Corp Pennsylvania R.R. v. United States Union Carbide & Carbon Corp. v. Nisley Weeks v. Bareco Oil Co Kainz v. Anheuser-Busch, Inc Hess v. Anderson, Clayton & Co That common questions predominate is not itself sufficient to justify a class action under subdivision (b)(3), for another method of handling the litigious situation may be available which has greater practical advantages. Thus one or more actions agreed to by the parties as test or model actions may be preferable to a class action; or it may prove feasible and preferable to consolidate actions. Cf. Weinstein, supra, 9 Buffalo L.Rev. at 43854. Even when a number of separate actions are proceeding simultaneously, experience shows that the burdens on the parties and the courts can sometimes be reduced by arrangements for avoiding repetitious discovery or the like. Currently the Coordinating Committee on Multiple Litigation in the United States District Courts (a subcommittee of the Committee on Trial Practice and Technique of the Judicial Conference of the United States) is charged with developing methods for expediting such massive litigation. To reinforce the point that the court with the aid of the parties ought to assess the relative advantages of alternative procedures for handling the total controversy, subdivision (b)(3) requires, as a further condition of maintaining the class action, that the court shall find that that procedure is superior to the others in the particular circumstances. Factors (A)(D) are listed, non-exhaustively, as pertinent to the findings. The court is to consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit. See Weeks v. Bareco Oil Co Pentland v. Dravo Corp In this connection the court should inform itself of any litigation actually pending by or against the individuals. The interests of individuals in conducting separate lawsuits may be so strong as to call for denial of a class action. On the other hand, these interests may be theoretic rather than practical; the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable. The burden that separate suits would impose on the party opposing the class, or upon the court calendars, may also fairly be considered. (See the discussion, under subdivision (c)(2) below, of the right of members to be excluded from the class upon their request.) Also pertinent is the question of the desirability of concentrating the trial of the claims in the particular forum by means of a class action, in contrast to allowing the claims to be litigated separately in forums to which they would ordinarily be brought. Finally, the court should consider the problems of management which are likely to arise in the conduct of a class action. Subdivision (c)(1) An order embodying a determination can be conditional; the court may rule, for example, that a class action may be maintained only if the representation is improved through intervention of additional parties of a stated type. A determination once made can be altered or amended before the decision on the merits if, upon fuller development of the facts, the original determination appears unsound. A negative determination means that the action should be stripped of its character as a class action. See subdivision (d)(4). Although an action thus becomes a nonclass action, the court may still be receptive to interventions before the decision on the merits so that the litigation may cover as many interests as can be conveniently handled; the questions whether the intervenors in the nonclass action shall be permitted to claim ancillary jurisdiction or the benefit of the date of the commencement of the action for purposes of the statute of limitations are to be decided by reference to the laws governing jurisdiction and limitations as they apply in particular contexts. Whether the court should require notice to be given to members of the class of its intention to make a determination, or of the order embodying it, is left to the courts discretion under subdivision (d)(2). Subdivision (c)(2) The notice setting forth the alternatives open to the members of the class, is to be the best practicable under the circumstances, and shall include individual notice to the members who can be identified through reasonable effort. (For further discussion of this notice, see the statement under subdivision (d)(2) below.) Subdivision (c)(3) Compare subdivision (c)(4) as to actions conducted as class actions only with respect to particular issues. Where the class-action character of the lawsuit is based solely on the existence of a limited fund, the judgment, while extending to all claims of class members against the fund, has ordinarily left unaffected the personal claims of nonappearing members against the debtor. See 3 Moore, supra, par. 23.11[4]. Hitherto, in a few actions conducted as spurious class actions and thus nominally designed to extend only to parties and others intervening before after Union Carbide & Carbon Corp. v. Nisley York v. Guaranty Trust Co Pentland v. Dravo Corp Speed v. Transamerica Corp State Wholesale Grocers v. Great Atl. & Pac. Tea Co Alabama Ind. Serv. Stat. Assn. v. Shell Pet Corp Tolliver v. Cudahy Packing Co Lockwood v. Hercules Powder Co Abram v. San Joaquin Cotton Oil Co Moore Although thus declaring that the judgment in a class action includes the class, as defined, subdivision (c)(3) does not disturb the recognized principle that the court conducting the action cannot predetermine the res judicata Judgments res judicata Subdivision (c)(4) Two or more classes may be represented in a single action. Where a class is found to include subclasses divergent in interest, the class may be divided correspondingly, and each subclass treated as a class. Subdivision (d) The court should consider how the proceedings are to be arranged in sequence, and what measures should be taken to simplify the proof and argument. See subdivision (d)(1). The orders resulting from this consideration, like the others referred to in subdivision (d), may be combined with a pretrial order under Rule 16, and are subject to modification as the case proceeds. Subdivision (d)(2) sets out a non-exhaustive list of possible occasions for orders requiring notice to the class. Such notice is not a novel conception. For example, in limited fund cases, members of the class have been notified to present individual claims after the basic class decision. Notice has gone to members of a class so that they might express any opposition to the representation, see United States v. American Optical Co Weeks v. Bareco Oil Co Oppenheimer v. F. J. Young & Co Sam Fox Publishing Co. v. United States Subdivision (d)(2) does not require notice at any stage, but rather calls attention to its availability and invokes the courts discretion. In the degree that there is cohesiveness or unity in the class and the representation is effective, the need for notice to the class will tend toward a minimum. These indicators suggest that notice under subdivision (d)(2) may be particularly useful and advisable in certain class actions maintained under subdivision (b)(3), for example, to permit members of the class to object to the representation. Indeed, under subdivision (c)(2), notice must be ordered, and is not merely discretionary, to give the members in a subdivision (b)(3) class action an opportunity to secure exclusion from the class. This mandatory notice pursuant to subdivision (c)(2), together with any discretionary notice which the court may find it advisable to give under subdivision (d)(2), is designed to fulfill requirements of due process to which the class action procedure is of course subject. See Hansberry v. Lee Mullane v. Central Hanover Bank & Trust Co Dickinson v. Burnham All American Airways, Inc. v. Elderd Gart v. Cole Notice to members of the class, whenever employed under amended Rule 23, should be accommodated to the particular purpose but need not comply with the formalities for service of process. See Chafee, supra, at 23031; Brendle v. Smith Cherner v. Transitron Electronic Corp Hormel v. United States In appropriate cases the court should notify interested government agencies of the pendency of the action or of particular steps therein. Subdivision (d)(3) reflects the possibility of conditioning the maintenance of a class action, e.g., on the strengthening of the representation, see subdivision (c)(1) above; and recognizes that the imposition of conditions on intervenors may be required for the proper and efficient conduct of the action. As to orders under subdivision (d)(4), see subdivision (c)(1) above. Subdivision (e) requires approval of the court, after notice, for the dismissal or compromise of any class action. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules1998 Amendment Subdivision (f) The courts of appeals will develop standards for granting review that reflect the changing areas of uncertainty in class litigation. The Federal Judicial Center study supports the view that many suits with class-action allegations present familiar and almost routine issues that are no more worthy of immediate appeal than many other interlocutory rulings. Yet several concerns justify expansion of present opportunities to appeal. An order denying certification may confront the plaintiff with a situation in which the only sure path to appellate review is by proceeding to final judgment on the merits of an individual claim that, standing alone, is far smaller than the costs of litigation. An order granting certification, on the other hand, may force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability. These concerns can be met at low cost by establishing in the court of appeals a discretionary power to grant interlocutory review in cases that show appeal-worthy certification issues. Permission to appeal may be granted or denied on the basis of any consideration that the court of appeals finds persuasive. Permission is most likely to be granted when the certification decision turns on a novel or unsettled question of law, or when, as a practical matter, the decision on certification is likely dispositive of the litigation. The district court, having worked through the certification decision, often will be able to provide cogent advice on the factors that bear on the decision whether to permit appeal. This advice can be particularly valuable if the certification decision is tentative. Even as to a firm certification decision, a statement of reasons bearing on the probable benefits and costs of immediate appeal can help focus the court of appeals decision, and may persuade the disappointed party that an attempt to appeal would be fruitless. The 10-day period for seeking permission to appeal is designed to reduce the risk that attempted appeals will disrupt continuing proceedings. It is expected that the courts of appeals will act quickly in making the preliminary determination whether to permit appeal. Permission to appeal does not stay trial court proceedings. A stay should be sought first from the trial court. If the trial court refuses a stay, its action and any explanation of its views should weigh heavily with the court of appeals. Appellate Rule 5 has been modified to establish the procedure for petitioning for leave to appeal under subdivision (f). Changes Made after Publication (GAP Report) Several changes were made in the published Committee Note. (1) References to 28 U.S.C.  1292(b) interlocutory appeals were revised to dispel any implication that the restrictive elements of  1292(b) should be read in to Rule 23(f). New emphasis was placed on court of appeals discretion by making explicit the analogy to certiorari discretion. (2) Suggestions that the new procedure is a modest expansion of appeal opportunities, to be applied with restraint, and that permission almost always will be denied when the certification decision turns on case-specific matters of fact and district court discretion, were deleted. It was thought better simply to observe that courts of appeals will develop standards that reflect the changing areas of uncertainty in class litigation. Committee Notes on Rules2003 Amendment Subdivision (c) Paragraph (1) Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 2636 Time may be needed to gather information necessary to make the certification decision. Although an evaluation of the probable outcome on the merits is not properly part of the certification decision, discovery in aid of the certification decision often includes information required to identify the nature of the issues that actually will be presented at trial. In this sense it is appropriate to conduct controlled discovery into the merits, limited to those aspects relevant to making the certification decision on an informed basis. Active judicial supervision may be required to achieve the most effective balance that expedites an informed certification determination without forcing an artificial and ultimately wasteful division between certification discovery and merits discovery. A critical need is to determine how the case will be tried. An increasing number of courts require a party requesting class certification to present a trial plan that describes the issues likely to be presented at trial and tests whether they are susceptible of class-wide proof. See Manual For Complex Litigation Third,  21.213, p. 44;  30.11, p. 214;  30.12, p. 215. Other considerations may affect the timing of the certification decision. The party opposing the class may prefer to win dismissal or summary judgment as to the individual plaintiffs without certification and without binding the class that might have been certified. Time may be needed to explore designation of class counsel under Rule 23(g), recognizing that in many cases the need to progress toward the certification determination may require designation of interim counsel under Rule 23(g)(2)(A). Although many circumstances may justify deferring the certification decision, active management may be necessary to ensure that the certification decision is not unjustifiably delayed. Subdivision (c)(1)(C) reflects two amendments. The provision that a class certification may be conditional is deleted. A court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met. The provision that permits alteration or amendment of an order granting or denying class certification is amended to set the cut-off point at final judgment rather than the decision on the merits. This change avoids the possible ambiguity in referring to the decision on the merits. Following a determination of liability, for example, proceedings to define the remedy may demonstrate the need to amend the class definition or subdivide the class. In this setting the final judgment concept is pragmatic. It is not the same as the concept used for appeal purposes, but it should be flexible, particularly in protracted litigation. The authority to amend an order under Rule 23(c)(1) before final judgment does not restore the practice of one-way intervention that was rejected by the 1966 revision of Rule 23. A determination of liability after certification, however, may show a need to amend the class definition. Decertification may be warranted after further proceedings. If the definition of a class certified under Rule 23(b)(3) is altered to include members who have not been afforded notice and an opportunity to request exclusion, noticeincluding an opportunity to request exclusionmust be directed to the new class members under Rule 23(c)(2)(B). Paragraph (2) The authority to direct notice to class members in a (b)(1) or (b)(2) class action should be exercised with care. For several reasons, there may be less need for notice than in a (b)(3) class action. There is no right to request exclusion from a (b)(1) or (b)(2) class. The characteristics of the class may reduce the need for formal notice. The cost of providing notice, moreover, could easily cripple actions that do not seek damages. The court may decide not to direct notice after balancing the risk that notice costs may deter the pursuit of class relief against the benefits of notice. When the court does direct certification notice in a (b)(1) or (b)(2) class action, the discretion and flexibility established by subdivision (c)(2)(A) extend to the method of giving notice. Notice facilitates the opportunity to participate. Notice calculated to reach a significant number of class members often will protect the interests of all. Informal methods may prove effective. A simple posting in a place visited by many class members, directing attention to a source of more detailed information, may suffice. The court should consider the costs of notice in relation to the probable reach of inexpensive methods. If a Rule 23(b)(3) class is certified in conjunction with a (b)(2) class, the (c)(2)(B) notice requirements must be satisfied as to the (b)(3) class. The direction that class-certification notice be couched in plain, easily understood language is a reminder of the need to work unremittingly at the difficult task of communicating with class members. It is difficult to provide information about most class actions that is both accurate and easily understood by class members who are not themselves lawyers. Factual uncertainty, legal complexity, and the complication of class-action procedure raise the barriers high. The Federal Judicial Center has created illustrative clear-notice forms that provide a helpful starting point for actions similar to those described in the forms. Subdivision (e) Paragraph (1) Rule 23(e)(1)(A) resolves the ambiguity in former Rule 23(e)s reference to dismissal or compromise of a class action. That language could beand at times wasread to require court approval of settlements with putative class representatives that resolved only individual claims. See Manual for Complex Litigation Third,  30.41. The new rule requires approval only if the claims, issues, or defenses of a certified class are resolved by a settlement, voluntary dismissal, or compromise. Subdivision (e)(1)(B) carries forward the notice requirement of present Rule 23(e) when the settlement binds the class through claim or issue preclusion; notice is not required when the settlement binds only the individual class representatives. Notice of a settlement binding on the class is required either when the settlement follows class certification or when the decisions on certification and settlement proceed simultaneously. Reasonable settlement notice may require individual notice in the manner required by Rule 23(c)(2)(B) for certification notice to a Rule 23(b)(3) class. Individual notice is appropriate, for example, if class members are required to take actionsuch as filing claimsto participate in the judgment, or if the court orders a settlement opt-out opportunity under Rule 23(e)(3). Subdivision (e)(1)(C) confirms and mandates the already common practice of holding hearings as part of the process of approving settlement, voluntary dismissal, or compromise that would bind members of a class. Subdivision (e)(1)(C) states the standard for approving a proposed settlement that would bind class members. The settlement must be fair, reasonable, and adequate. A helpful review of many factors that may deserve consideration is provided by In re: Prudential Ins. Co. America Sales Practice Litigation Agent Actions The court must make findings that support the conclusion that the settlement is fair, reasonable, and adequate. The findings must be set out in sufficient detail to explain to class members and the appellate court the factors that bear on applying the standard. Settlement review also may provide an occasion to review the cogency of the initial class definition. The terms of the settlement themselves, or objections, may reveal divergent interests of class members and demonstrate the need to redefine the class or to designate subclasses. Redefinition of a class certified under Rule 23(b)(3) may require notice to new class members under Rule 23(c)(2)(B). See Rule 23(c)(1)(C). Paragraph (2) Further inquiry into the agreements identified by the parties should not become the occasion for discovery by the parties or objectors. The court may direct the parties to provide to the court or other parties a summary or copy of the full terms of any agreement identified by the parties. The court also may direct the parties to provide a summary or copy of any agreement not identified by the parties that the court considers relevant to its review of a proposed settlement. In exercising discretion under this rule, the court may act in steps, calling first for a summary of any agreement that may have affected the settlement and then for a complete version if the summary does not provide an adequate basis for review. A direction to disclose a summary or copy of an agreement may raise concerns of confidentiality. Some agreements may include information that merits protection against general disclosure. And the court must provide an opportunity to claim work-product or other protections. Paragraph (3) Rule 23(e)(3) authorizes the court to refuse to approve a settlement unless the settlement affords a new opportunity to elect exclusion in a case that settles after a certification decision if the earlier opportunity to elect exclusion provided with the certification notice has expired by the time of the settlement notice. A decision to remain in the class is likely to be more carefully considered and is better informed when settlement terms are known. The opportunity to request exclusion from a proposed settlement is limited to members of a (b)(3) class. Exclusion may be requested only by individual class members; no class member may purport to opt out other class members by way of another class action. The decision whether to approve a settlement that does not allow a new opportunity to elect exclusion is confided to the courts discretion. The court may make this decision before directing notice to the class under Rule 23(e)(1)(B) or after the Rule 23(e)(1)(C) hearing. Many factors may influence the courts decision. Among these are changes in the information available to class members since expiration of the first opportunity to request exclusion, and the nature of the individual class members claims. The terms set for permitting a new opportunity to elect exclusion from the proposed settlement of a Rule 23(b)(3) class action may address concerns of potential misuse. The court might direct, for example, that class members who elect exclusion are bound by rulings on the merits made before the settlement was proposed for approval. Still other terms or conditions may be appropriate. Paragraph (4) Subdivision (e)(4)(B) requires court approval for withdrawal of objections made under subdivision (e)(4)(A). Review follows automatically if the objections are withdrawn on terms that lead to modification of the settlement with the class. Review also is required if the objector formally withdraws the objections. If the objector simply abandons pursuit of the objection, the court may inquire into the circumstances. Approval under paragraph (4)(B) may be given or denied with little need for further inquiry if the objection and the disposition go only to a protest that the individual treatment afforded the objector under the proposed settlement is unfair because of factors that distinguish the objector from other class members. Different considerations may apply if the objector has protested that the proposed settlement is not fair, reasonable, or adequate on grounds that apply generally to a class or subclass. Such objections, which purport to represent class-wide interests, may augment the opportunity for obstruction or delay. If such objections are surrendered on terms that do not affect the class settlement or the objectors participation in the class settlement, the court often can approve withdrawal of the objections without elaborate inquiry. Once an objector appeals, control of the proceeding lies in the court of appeals. The court of appeals may undertake review and approval of a settlement with the objector, perhaps as part of appeal settlement procedures, or may remand to the district court to take advantage of the district courts familiarity with the action and settlement. Subdivision (g) Paragraph (1) Paragraph (1)(A) Paragraph (1)(A) does not apply if a statute provides otherwise. This recognizes that provisions of the Private Securities Litigation Reform Act of 1995, Pub. L. No. 10467, 109 Stat. 737 Paragraph 1(B) Paragraph (1)(C) The court may direct potential class counsel to provide additional information about the topics mentioned in paragraph (1)(C) or about any other relevant topic. For example, the court may direct applicants to inform the court concerning any agreements about a prospective award of attorney fees or nontaxable costs, as such agreements may sometimes be significant in the selection of class counsel. The court might also direct that potential class counsel indicate how parallel litigation might be coordinated or consolidated with the action before the court. The court may also direct counsel to propose terms for a potential award of attorney fees and nontaxable costs. Attorney fee awards are an important feature of class action practice, and attention to this subject from the outset may often be a productive technique. Paragraph (2)(C) therefore authorizes the court to provide directions about attorney fees and costs when appointing class counsel. Because there will be numerous class actions in which this information is not likely to be useful, the court need not consider it in all class actions. Some information relevant to class counsel appointment may involve matters that include adversary preparation in a way that should be shielded from disclosure to other parties. An appropriate protective order may be necessary to preserve confidentiality. In evaluating prospective class counsel, the court should weigh all pertinent factors. No single factor should necessarily be determinative in a given case. For example, the resources counsel will commit to the case must be appropriate to its needs, but the court should be careful not to limit consideration to lawyers with the greatest resources. If, after review of all applicants, the court concludes that none would be satisfactory class counsel, it may deny class certification, reject all applications, recommend that an application be modified, invite new applications, or make any other appropriate order regarding selection and appointment of class counsel. Paragraph (2) In a plaintiff class action the court usually would appoint as class counsel only an attorney or attorneys who have sought appointment. Different considerations may apply in defendant class actions. The rule states that the court should appoint class counsel. In many instances, the applicant will be an individual attorney. In other cases, however, an entire firm, or perhaps numerous attorneys who are not otherwise affiliated but are collaborating on the action will apply. No rule of thumb exists to determine when such arrangements are appropriate; the court should be alert to the need for adequate staffing of the case, but also to the risk of overstaffing or an ungainly counsel structure. Paragraph (2)(A) Rule 23(c)(1) provides that the court should decide whether to certify the class at an early practicable time, and directs that class counsel should be appointed in the order certifying the class. In some cases, it may be appropriate for the court to allow a reasonable period after commencement of the action for filing applications to serve as class counsel. The primary ground for deferring appointment would be that there is reason to anticipate competing applications to serve as class counsel. Examples might include instances in which more than one class action has been filed, or in which other attorneys have filed individual actions on behalf of putative class members. The purpose of facilitating competing applications in such a case is to afford the best possible representation for the class. Another possible reason for deferring appointment would be that the initial applicant was found inadequate, but it seems appropriate to permit additional applications rather than deny class certification. Paragraph (2)(B) If there are multiple adequate applicants, paragraph (2)(B) directs the court to select the class counsel best able to represent the interests of the class. This decision should also be made using the factors outlined in paragraph (1)(C), but in the multiple applicant situation the court is to go beyond scrutinizing the adequacy of counsel and make a comparison of the strengths of the various applicants. As with the decision whether to appoint the sole applicant for the position, no single factor should be dispositive in selecting class counsel in cases in which there are multiple applicants. The fact that a given attorney filed the instant action, for example, might not weigh heavily in the decision if that lawyer had not done significant work identifying or investigating claims. Depending on the nature of the case, one important consideration might be the applicants existing attorney-client relationship with the proposed class representative. Paragraph (2)(C) Subdivision (h) Subdivision (h) applies to an action certified as a class action. This includes cases in which there is a simultaneous proposal for class certification and settlement even though technically the class may not be certified unless the court approves the settlement pursuant to review under Rule 23(e). When a settlement is proposed for Rule 23(e) approval, either after certification or with a request for certification, notice to class members about class counsels fee motion would ordinarily accompany the notice to the class about the settlement proposal itself. This subdivision does not undertake to create new grounds for an award of attorney fees or nontaxable costs. Instead, it applies when such awards are authorized by law or by agreement of the parties. Against that background, it provides a format for all awards of attorney fees and nontaxable costs in connection with a class action, not only the award to class counsel. In some situations, there may be a basis for making an award to other counsel whose work produced a beneficial result for the class, such as attorneys who acted for the class before certification but were not appointed class counsel, or attorneys who represented objectors to a proposed settlement under Rule 23(e) or to the fee motion of class counsel. Other situations in which fee awards are authorized by law or by agreement of the parties may exist. This subdivision authorizes an award of reasonable attorney fees and nontaxable costs. This is the customary term for measurement of fee awards in cases in which counsel may obtain an award of fees under the common fund theory that applies in many class actions, and is used in many fee-shifting statutes. Depending on the circumstances, courts have approached the determination of what is reasonable in different ways. In particular, there is some variation among courts about whether in common fund cases the court should use the lodestar or a percentage method of determining what fee is reasonable. The rule does not attempt to resolve the question whether the lodestar or percentage approach should be viewed as preferable. Active judicial involvement in measuring fee awards is singularly important to the proper operation of the class-action process. Continued reliance on caselaw development of fee-award measures does not diminish the courts responsibility. In a class action, the district court must ensure that the amount and mode of payment of attorney fees are fair and proper whether the fees come from a common fund or are otherwise paid. Even in the absence of objections, the court bears this responsibility. Courts discharging this responsibility have looked to a variety of factors. One fundamental focus is the result actually achieved for class members, a basic consideration in any case in which fees are sought on the basis of a benefit achieved for class members. The Private Securities Litigation Reform Act of 1995 explicitly makes this factor a cap for a fee award in actions to which it applies. See 15 U.S.C.  77z1(a)(6); 78u4(a)(6) (fee award should not exceed a reasonable percentage of the amount of any damages and prejudgment interest actually paid to the class). For a percentage approach to fee measurement, results achieved is the basic starting point. In many instances, the court may need to proceed with care in assessing the value conferred on class members. Settlement regimes that provide for future payments, for example, may not result in significant actual payments to class members. In this connection, the court may need to scrutinize the manner and operation of any applicable claims procedure. In some cases, it may be appropriate to defer some portion of the fee award until actual payouts to class members are known. Settlements involving nonmonetary provisions for class members also deserve careful scrutiny to ensure that these provisions have actual value to the class. On occasion the courts Rule 23(e) review will provide a solid basis for this sort of evaluation, but in any event it is also important to assessing the fee award for the class. At the same time, it is important to recognize that in some class actions the monetary relief obtained is not the sole determinant of an appropriate attorney fees award. Cf. Blanchard v. Bergeron Any directions or orders made by the court in connection with appointing class counsel under Rule 23(g) should weigh heavily in making a fee award under this subdivision. Courts have also given weight to agreements among the parties regarding the fee motion, and to agreements between class counsel and others about the fees claimed by the motion. Rule 54(d)(2)(B) provides: If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made. The agreement by a settling party not to oppose a fee application up to a certain amount, for example, is worthy of consideration, but the court remains responsible to determine a reasonable fee. Side agreements regarding fees provide at least perspective pertinent to an appropriate fee award. In addition, courts may take account of the fees charged by class counsel or other attorneys for representing individual claimants or objectors in the case. In determining a fee for class counsel, the courts objective is to ensure an overall fee that is fair for counsel and equitable within the class. In some circumstances individual fee agreements between class counsel and class members might have provisions inconsistent with those goals, and the court might determine that adjustments in the class fee award were necessary as a result. Finally, it is important to scrutinize separately the application for an award covering nontaxable costs. If costs were addressed in the order appointing class counsel, those directives should be a presumptive starting point in determining what is an appropriate award. Paragraph (1) The court should direct when the fee motion must be filed. For motions by class counsel in cases subject to court review of a proposed settlement under Rule 23(e), it would be important to require the filing of at least the initial motion in time for inclusion of information about the motion in the notice to the class about the proposed settlement that is required by Rule 23(e). In cases litigated to judgment, the court might also order class counsels motion to be filed promptly so that notice to the class under this subdivision (h) can be given. Besides service of the motion on all parties, notice of class counsels motion for attorney fees must be directed to the class in a reasonable manner. Because members of the class have an interest in the arrangements for payment of class counsel whether that payment comes from the class fund or is made directly by another party, notice is required in all instances. In cases in which settlement approval is contemplated under Rule 23(e), notice of class counsels fee motion should be combined with notice of the proposed settlement, and the provision regarding notice to the class is parallel to the requirements for notice under Rule 23(e). In adjudicated class actions, the court may calibrate the notice to avoid undue expense. Paragraph (2) The court may allow an objector discovery relevant to the objections. In determining whether to allow discovery, the court should weigh the need for the information against the cost and delay that would attend discovery. See Rule 26(b)(2). One factor in determining whether to authorize discovery is the completeness of the material submitted in support of the fee motion, which depends in part on the fee measurement standard applicable to the case. If the motion provides thorough information, the burden should be on the objector to justify discovery to obtain further information. Paragraph (3) Paragraph (4) Changes Made After Publication and Comment Rule 23(c)(1)(C) is changed by deleting all references to conditional certification. Rule 23(c)(2)(A) is changed by deleting the requirement that class members be notified of certification of a (b)(1) or (b)(2) class. The new version provides only that the court may direct appropriate notice to the class. Rule 23(c)(2)(B) is revised to require that the notice of class certification define the certified class in terms identical to the terms used in (c)(1)(B), and to incorporate the statement transferred from (c)(1)(B) on when and how members may elect to be excluded. Rule 23(e)(1) is revised to delete the requirement that the parties must win court approval for a precertification dismissal or settlement. Rule 23(e)(2) is revised to change the provision that the court may direct the parties to file a copy or summary of any agreement or understanding made in connection with a proposed settlement. The new provision directs the parties to a proposed settlement to identify any agreement made in connection with the settlement. Rule 23(e)(3) is proposed in a restyled form of the second version proposed for publication. Rule 23(e)(4)(B) is restyled. Rule 23(g)(1)(C) is a transposition of criteria for appointing class counsel that was published as Rule 23(g)(2)(B). The criteria are rearranged, and expanded to include consideration of experience in handling claims of the type asserted in the action and of counsels knowledge of the applicable law. Rule 23(g)(2)(A) is a new provision for designation of interim counsel to act on behalf of a putative class before a certification determination is made. Rule 23(g)(2)(B) is revised to point up the differences between appointment of class counsel when there is only one applicant and when there are competing applicants. When there is only one applicant the court must determine that the applicant is able to fairly and adequately represent class interests. When there is more than one applicant the court must appoint the applicant best able to represent class interests. Rule 23(h) is changed to require that notice of an attorney-fee motion by class counsel be directed to class members, rather than given to all class members. Committee Notes on Rules2007 Amendment The language of Rule 23 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Amended Rule 23(d)(2) carries forward the provisions of former Rule 23(d) that recognize two separate propositions. First, a Rule 23(d) order may be combined with a pretrial order under Rule 16. Second, the standard for amending the Rule 23(d) order continues to be the more open-ended standard for amending Rule 23(d) orders, not the more exacting standard for amending Rule 16 orders. As part of the general restyling, intensifiers that provide emphasis but add no meaning are consistently deleted. Amended Rule 23(f) omits as redundant the explicit reference to court of appeals discretion in deciding whether to permit an interlocutory appeal. The omission does not in any way limit the unfettered discretion established by the original rule. Committee Notes on Rules2009 Amendment The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 6. Committee Notes on Rules2018 Amendment Rule 23 is amended mainly to address issues related to settlement, and also to take account of issues that have emerged since the rule was last amended in 2003. Subdivision (c)(2). Subdivision (c)(2) is also amended to recognize contemporary methods of giving notice to class members. Since Eisen v. Carlisle & Jacquelin Rule 23(c)(2)(B) is amended to take account of these changes. The rule continues to call for giving class members the best notice that is practicable. It does not specify any particular means as preferred. Although it may sometimes be true that electronic methods of notice, for example email, are the most promising, it is important to keep in mind that a significant portion of class members in certain cases may have limited or no access to email or the Internet. Instead of preferring any one means of notice, therefore, the amended rule relies on courts and counsel to focus on the means or combination of means most likely to be effective in the case before the court. The court should exercise its discretion to select appropriate means of giving notice. In providing the court with sufficient information to enable it to decide whether to give notice to the class of a proposed class-action settlement under Rule 23(e)(1), it would ordinarily be important to include details about the proposed method of giving notice and to provide the court with a copy of each notice the parties propose to use. In determining whether the proposed means of giving notice is appropriate, the court should also give careful attention to the content and format of the notice and, if notice is given under both Rule 23(e)(1) and Rule 23(c)(2)(B), any claim form class members must submit to obtain relief. Counsel should consider which method or methods of giving notice will be most effective; simply assuming that the traditional methods are best may disregard contemporary communication realities. The ultimate goal of giving notice is to enable class members to make informed decisions about whether to opt out or, in instances where a proposed settlement is involved, to object or to make claims. Rule 23(c)(2)(B) directs that the notice be in plain, easily understood language. Means, format, and content that would be appropriate for class members likely to be sophisticated, for example in a securities fraud class action, might not be appropriate for a class having many members likely to be less sophisticated. The court and counsel may wish to consider the use of class notice experts or professional claims administrators. Attention should focus also on the method of opting out provided in the notice. The proposed method should be as convenient as possible, while protecting against unauthorized opt-out notices. Subdivision (e). Subdivision (e)(1). The subjects to be addressed depend on the specifics of the particular class action and proposed settlement. But some general observations can be made. One key element is class certification. If the court has already certified a class, the only information ordinarily necessary is whether the proposed settlement calls for any change in the class certified, or of the claims, defenses, or issues regarding which certification was granted. But if a class has not been certified, the parties must ensure that the court has a basis for concluding that it likely will be able, after the final hearing, to certify the class. Although the standards for certification differ for settlement and litigation purposes, the court cannot make the decision regarding the prospects for certification without a suitable basis in the record. The ultimate decision to certify the class for purposes of settlement cannot be made until the hearing on final approval of the proposed settlement. If the settlement is not approved, the parties positions regarding certification for settlement should not be considered if certification is later sought for purposes of litigation. Regarding the proposed settlement, many types of information might appropriately be provided to the court. A basic focus is the extent and type of benefits that the settlement will confer on the members of the class. Depending on the nature of the proposed relief, that showing may include details of the contemplated claims process and the anticipated rate of claims by class members. Because some funds are frequently left unclaimed, the settlement agreement ordinarily should address the distribution of those funds. The parties should also supply the court with information about the likely range of litigated outcomes, and about the risks that might attend full litigation. Information about the extent of discovery completed in the litigation or in parallel actions may often be important. In addition, as suggested by Rule 23(b)(3)(B), the parties should provide information about the existence of other pending or anticipated litigation on behalf of class members involving claims that would be released under the proposal. The proposed handling of an award of attorneys fees under Rule 23(h) ordinarily should be addressed in the parties submission to the court. In some cases, it will be important to relate the amount of an award of attorneys fees to the expected benefits to the class. One way to address this issue is to defer some or all of the award of attorneys fees until the court is advised of the actual claims rate and results. Another topic that normally should be considered is any agreement that must be identified under Rule 23(e)(3). The parties may supply information to the court on any other topic that they regard as pertinent to the determination whether the proposal is fair, reasonable, and adequate. The court may direct the parties to supply further information about the topics they do address, or to supply information on topics they do not address. The court should not direct notice to the class until the parties submissions show it is likely that the court will be able to approve the proposal after notice to the class and a final approval hearing. Subdivision (e)(2). A lengthy list of factors can take on an independent life, potentially distracting attention from the central concerns that inform the settlement-review process. A circuits list might include a dozen or more separately articulated factors. Some of those factorsperhaps manymay not be relevant to a particular case or settlement proposal. Those that are relevant may be more or less important to the particular case. Yet counsel and courts may feel it necessary to address every factor on a given circuits list in every case. The sheer number of factors can distract both the court and the parties from the central concerns that bear on review under Rule 23(e)(2). This amendment therefore directs the parties to present the settlement to the court in terms of a shorter list of core concerns, by focusing on the primary procedural considerations and substantive qualities that should always matter to the decision whether to approve the proposal. Approval under Rule 23(e)(2) is required only when class members would be bound under Rule 23(c)(3). Accordingly, in addition to evaluating the proposal itself, the court must determine whether it can certify the class under the standards of Rule 23(a) and (b) for purposes of judgment based on the proposal. Paragraphs (A) and (B). The information submitted under Rule 23(e)(1) may provide a useful starting point in assessing these topics. For example, the nature and amount of discovery in this or other cases, or the actual outcomes of other cases, may indicate whether counsel negotiating on behalf of the class had an adequate information base. The pendency of other litigation about the same general subject on behalf of class members may also be pertinent. The conduct of the negotiations may be important as well. For example, the involvement of a neutral or court-affiliated mediator or facilitator in those negotiations may bear on whether they were conducted in a manner that would protect and further the class interests. Particular attention might focus on the treatment of any award of attorneys fees, with respect to both the manner of negotiating the fee award and its terms. Paragraphs (C) and (D). Another central concern will relate to the cost and risk involved in pursuing a litigated outcome. Often, courts may need to forecast the likely range of possible classwide recoveries and the likelihood of success in obtaining such results. That forecast cannot be done with arithmetic accuracy, but it can provide a benchmark for comparison with the settlement figure. If the class has not yet been certified for trial, the court may consider whether certification for litigation would be granted were the settlement not approved. Examination of the attorney-fee provisions may also be valuable in assessing the fairness of the proposed settlement. Ultimately, any award of attorneys fees must be evaluated under Rule 23(h), and no rigid limits exist for such awards. Nonetheless, the relief actually delivered to the class can be a significant factor in determining the appropriate fee award. Often it will be important for the court to scrutinize the method of claims processing to ensure that it facilitates filing legitimate claims. A claims processing method should deter or defeat unjustified claims, but the court should be alert to whether the claims process is unduly demanding. Paragraph (D) calls attention to a concern that may apply to some class action settlementsinequitable treatment of some class members vis-a-vis others. Matters of concern could include whether the apportionment of relief among class members takes appropriate account of differences among their claims, and whether the scope of the release may affect class members in different ways that bear on the apportionment of relief. Subdivisions (e)(3) and (e)(4). Subdivision (e)(5). Subdivision (e)(5)(A). The rule is also amended to clarify that objections must provide sufficient specifics to enable the parties to respond to them and the court to evaluate them. One feature required of objections is specification whether the objection asserts interests of only the objector, or of some subset of the class, or of all class members. Beyond that, the rule directs that the objection state its grounds with specificity. Failure to provide needed specificity may be a basis for rejecting an objection. Courts should take care, however, to avoid unduly burdening class members who wish to object, and to recognize that a class member who is not represented by counsel may present objections that do not adhere to technical legal standards. Subdivision (e)(5)(B). But some objectors may be seeking only personal gain, and using objections to obtain benefits for themselves rather than assisting in the settlement-review process. At least in some instances, it seems that objectorsor their counselhave sought to obtain consideration for withdrawing their objections or dismissing appeals from judgments approving class settlements. And class counsel sometimes may feel that avoiding the delay produced by an appeal justifies providing payment or other consideration to these objectors. Although the payment may advance class interests in a particular case, allowing payment perpetuates a system that can encourage objections advanced for improper purposes. The court-approval requirement currently in Rule 23(e)(5) partly addresses this concern. Because the concern only applies when consideration is given in connection with withdrawal of an objection, however, the amendment requires approval under Rule 23(e)(5)(B)(i) only when consideration is involved. Although such payment is usually made to objectors or their counsel, the rule also requires court approval if a payment in connection with forgoing or withdrawing an objection or appeal is instead to another recipient. The term consideration should be broadly interpreted, particularly when the withdrawal includes some arrangements beneficial to objector counsel. If the consideration involves a payment to counsel for an objector, the proper procedure is by motion under Rule 23(h) for an award of fees. Rule 23(e)(5)(B)(ii) applies to consideration in connection with forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal. Because an appeal by a class-action objector may produce much longer delay than an objection before the district court, it is important to extend the court-approval requirement to apply in the appellate context. The district court is best positioned to determine whether to approve such arrangements; hence, the rule requires that the motion seeking approval be made to the district court. Until the appeal is docketed by the circuit clerk, the district court may dismiss the appeal on stipulation of the parties or on the appellants motion. See Fed. R. App. P. 42(a). Thereafter, the court of appeals has authority to decide whether to dismiss the appeal. This rules requirement of district court approval of any consideration in connection with such dismissal by the court of appeals has no effect on the authority of the court of appeals to decide whether to dismiss the appeal. It is, instead, a requirement that applies only to providing consideration in connection with forgoing, dismissing, or abandoning an appeal. Subdivision (e)(5)(C). Subdivision (f). The rule is also amended to extend the time to file a petition for review of a class-action certification order to 45 days whenever a party is the United States, one of its agencies, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States behalf. In such a case, the extension applies to a petition for permission to appeal by any party. The extension recognizesas under Rules 4(i) and 12(a) and Appellate Rules 4(a)(1)(B) and 40(a)(1)that the United States has a special need for additional time in regard to these matters. It applies whether the officer or employee is sued in an official capacity or an individual capacity. An action against a former officer or employee of the United States is covered by this provision in the same way as an action against a present officer or employee. Termination of the relationship between the individual defendant and the United States does not reduce the need for additional time. Rule 23.1. Derivative Actions (a) Prerequisites. This rule applies when one or more shareholders or members of a corporation or an unincorporated association bring a derivative action to enforce a right that the corporation or association may properly assert but has failed to enforce. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of shareholders or members who are similarly situated in enforcing the right of the corporation or association. (b) Pleading Requirements. The complaint must be verified and must: (1) allege that the plaintiff was a shareholder or member at the time of the transaction complained of, or that the plaintiffs share or membership later devolved on it by operation of law; (2) allege that the action is not a collusive one to confer jurisdiction that the court would otherwise lack; and (3) state with particularity: (A) any effort by the plaintiff to obtain the desired action from the directors or comparable authority and, if necessary, from the shareholders or members; and (B) the reasons for not obtaining the action or not making the effort. (c) Settlement, Dismissal, and Compromise. A derivative action may be settled, voluntarily dismissed, or compromised only with the courts approval. Notice of a proposed settlement, voluntary dismissal, or compromise must be given to shareholders or members in the manner that the court orders. (As added Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1966 A derivative action by a shareholder of a corporation or by a member of an unincorporated association has distinctive aspects which require the special provisions set forth in the new rule. The next-to-the-last sentence recognizes that the question of adequacy of representation may arise when the plaintiff is one of a group of shareholders or members. Cf Moores Federal Practice The court has inherent power to provide for the conduct of the proceedings in a derivative action, including the power to determine the course of the proceedings and require that any appropriate notice be given to shareholders or members. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 23.1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 23.2. Actions Relating to Unincorporated Associations  This rule applies to an action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties. The action may be maintained only if it appears that those parties will fairly and adequately protect the interests of the association and its members. In conducting the action, the court may issue any appropriate orders corresponding with those in Rule 23(d), and the procedure for settlement, voluntary dismissal, or compromise must correspond with the procedure in Rule 23(e). (As added Feb. 28, 1966 July 1, 1966 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1966 Although an action by or against representatives of the membership of an unincorporated association has often been viewed as a class action, the real or main purpose of this characterization has been to give entity treatment to the association when for formal reasons it cannot sue or be sued as a jural person under Rule 17(b). See Louisell & Hazard, Pleading and Procedure: State and Federal Moores Federal Practice West v. Randall Gibbs v. Buck Tunstall v. Brotherhood of Locomotive F. & E Oskoian v. Canuel Committee Notes on Rules2007 Amendment The language of Rule 23.2 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 24. Intervention (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless existing parties adequately represent that interest. (b) Permissive Intervention. (1)  In General. (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. (2)  By a Government Officer or Agency. (A) a statute or executive order administered by the officer or agency; or (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order. (3)  Delay or Prejudice. (c) Notice and Pleading Required. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 The right to intervene given by the following and similar statutes is preserved, but the procedure for its assertion is governed by this rule: U.S.C., Title 28:  45a [now 2323] (Special attorneys; participation by Interstate Commerce Commission; intervention) (in certain cases under interstate commerce laws)  48 [now 2322] (Suits to be against United States; intervention by United States)  401 [now 2403] (Intervention by United States; constitutionality of Federal statute) U.S.C., Title 40:  276a2(b) [now 3144] (Bonds of contractors for public buildings or works; rights of persons furnishing labor and materials). Compare with the last sentence of [former] Equity Rule 37 (Parties GenerallyIntervention). This rule amplifies and restates the present federal practice at law and in equity. For the practice in admiralty see Admiralty Rules 34 (How Third Party May Intervene) and 42 (Claims Against Proceeds in Registry). See generally Moore and Levi, Federal Intervention: I The Right to Intervene and Reorganization In re Metropolitan Amalgamated Estates, Ltd Wilson v. Church Re Fowler Vavasseur v. Krupp Notes of Advisory Committee on Rules1946 Amendments Note. Subdivision (a) Subdivision (b) Matter of Bender Body Co Securities and Exchange Commission v. United States Realty & Improvement Co Securities and Exchange Commission v. Long Island Lighting Co Nature of Permissive Intervention Under Rule 24b Intervention by Public Agencies in Private Litigation in the Federal Courts Regarding the construction of subdivision (b)(2), see Allen Calculators, Inc. v. National Cash Register Co Notes of Advisory Committee on Rules1948 Amendment The amendment substitutes the present statutory reference. Notes of Advisory Committee on Rules1963 Amendment This amendment conforms to the amendment of Rule 5(a). See the Advisory Committees Note to that amendment. Notes of Advisory Committee on Rules1966 Amendment In attempting to overcome certain difficulties which have arisen in the application of present Rule 24(a)(2) and (3), this amendment draws upon the revision of the related Rules 19 (joinder of persons needed for just adjudication) and 23 (class actions), and the reasoning underlying that revision. Rule 24(a)(3) as amended in 1948 provided for intervention of right where the applicant established that he would be adversely affected by the distribution or disposition of property involved in an action to which he had not been made a party. Significantly, some decided cases virtually disregarded the language of this provision. Thus Professor Moore states: The concept of a fund has been applied so loosely that it is possible for a court to find a fund in almost any in personam action. Moores Federal Practice Formulabs, Inc. v. Hartley Pen Co Pleading and Procedure: State and Federal The general purpose of original Rule 24(a)(2) was to entitle an absentee, purportedly represented by a party, to intervene in the action if he could establish with fair probability that the representation was inadequate. Thus, where an action is being prosecuted or defended by a trustee, a beneficiary of the trust should have a right to intervene if he can show that the trustees representation of his interest probably is inadequate; similarly a member of a class should have the right to intervene in a class action if he can show the inadequacy of the representation of his interest by the representative parties before the court. Original Rule 24(a)(2), however, made it a condition of intervention that the applicant is or may be bound by a judgment in the action, and this created difficulties with intervention in class actions. If the bound language was read literally in the sense of res judicata, it could defeat intervention in some meritorious cases. A member of a class to whom a judgment in a class action extended by its terms (see Rule 23(c)(3), as amended) might be entitled to show in a later action, when the judgment in the class action was claimed to operate as res judicata against him, that the representative in the class action had not in fact adequately represented him. If he could make this showing, the class-action judgment might be held not to bind him. See Hansberry v. Lee Sam Fox Publishing Co. v. United States Sutphen Estates, Inc. v. United States International M. & I. Corp. v. Von Clemm Atlantic Refining Co. v. Standard Oil Co The amendment provides that an applicant is entitled to intervene in an action when his position is comparable to that of a person under Rule 19(a)(2)(i), as amended, unless his interest is already adequately represented in the action by existing parties. The Rule 19(a)(2)(i) criterion imports practical considerations, and the deletion of the bound language similarly frees the rule from undue preoccupation with strict considerations of res judicata. The representation whose adequacy comes into question under the amended rule is not confined to formal representation like that provided by a trustee for his beneficiary or a representative party in a class action for a member of the class. A party to an action may provide practical representation to the absentee seeking intervention although no such formal relationship exists between them, and the adequacy of this practical representation will then have to be weighed. See International M. & I. Corp. v. Von Clemm Atlantic Refining Co. v. Standard Oil Co Wolpe v. Poretsky Ford Motor Co. v. Bisanz Bros An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment Language is added to bring Rule 24(c) into conformity with the statute cited, resolving some confusion reflected in district court rules. As the text provides, counsel challenging the constitutionality of legislation in an action in which the appropriate government is not a party should call the attention of the court to its duty to notify the appropriate governmental officers. The statute imposes the burden of notification on the court, not the party making the constitutional challenge, partly in order to protect against any possible waiver of constitutional rights by parties inattentive to the need for notice. For this reason, the failure of a party to call the courts attention to the matter cannot be treated as a waiver. Committee Notes on Rules2006 Amendment New Rule 5.1 replaces the final three sentences of Rule 24(c), implementing the provisions of 28 U.S.C.  2403. Section 2403 requires notification to the Attorney General of the United States when the constitutionality of an Act of Congress is called in question, and to the state attorney general when the constitutionality of a state statute is drawn into question. Committee Notes on Rules2007 Amendment The language of Rule 24 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The former rule stated that the same procedure is followed when a United States statute gives a right to intervene. The statement is deleted because it added nothing. Rule 25. Substitution of Parties (a) Death. (1)  Substitution if the Claim Is Not Extinguished. (2)  Continuation Among the Remaining Parties. (3)  Service. (b) Incompetency. If a party becomes incompetent, the court may, on motion, permit the action to be continued by or against the partys representative. The motion must be served as provided in Rule 25(a)(3). (c) Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(3). (d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officers successor is automatically substituted as a party. Later proceedings should be in the substituted partys name, but any misnomer not affecting the parties substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution. (As amended Dec. 29, 1948 Oct. 20, 1949 Apr. 17, 1961 July 19, 1961 Jan. 21, 1963 July 1, 1963 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) scire facias 2. This rule modifies U.S.C., Title 28, [former]  778 (Death of parties; substitution of executor or administrator), 779 (Death of one of several plaintiffs or defendants), and 780 (Survival of actions, suits, or proceedings, etc.) insofar as they differ from it. Note to Subdivisions (b) and (c) Note to Subdivision (d) Ex parte La Prade Notes of Advisory Committee on Rules1948 Amendment The Act of February 13, 1925 43 Stat. 941 Notes of Advisory Committee on Rules1961 Amendment Subdivision (d)(1) Moores Federal Practice Amendments to the Federal Rules: The Function of a Continuing Rules Committee Developments in the LawRemedies Against the United States and Its Officials Snyder v. Buck Vibra Brush Corp. v. Schaffer e.g. Acheson v. Furusho e.g. Snyder v. Buck, supra; Poindexter v. Folsom Under the amendment, the successor is automatically substituted as a party without an application or showing of need to continue the action. An order of substitution is not required, but may be entered at any time if a party desires or the court thinks fit. The general term public officer is used in preference to the enumeration which appears in the present rule. It comprises Federal, State, and local officers. The expression in his official capacity is to be interpreted in its context as part of a simple procedural rule for substitution; care should be taken not to distort its meaning by mistaken analogies to the doctrine of sovereign immunity from suit or the Eleventh Amendment. The amended rule will apply to all actions brought by public officers for the government, and to any action brought in form against a named officer, but intrinsically against the government or the office or the incumbent thereof whoever he may be from time to time during the action. Thus the amended rule will apply to actions against officers to compel performance of official duties or to obtain judicial review of their orders. It will also apply to actions to prevent officers from acting in excess of their authority or under authority not validly conferred, cf. Philadelphia Co. v. Stimson cf. Ex parte Young Ex parte La Prade Cf. Land v. Dollar Larson v. Domestic & Foreign Commerce Corp Barr v. Matteo Howard v. Lyons Gregoire v. Biddle cert. denied Ignelzi v. Granger supra Automatic substitution under the amended rule, being merely a procedural device for substituting a successor for a past officeholder as a party, is distinct from and does not affect any substantive issues which may be involved in the action. Thus a defense of immunity from suit will remain in the case despite a substitution. Where the successor does not intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will be open to him, after substitution, as plaintiff to seek voluntary dismissal of the action, or as defendant to seek to have the action dismissed as moot or to take other appropriate steps to avert a judgment or decree. Contrast Ex parte La Prade, supra; Allen v. Regents of the University System McGrath v. National Assn. of Mfgrs Danenberg v. Cohen As the present amendment of Rule 25(d)(1) eliminates a specified time period to secure substitution of public officers, the reference in Rule 6(b) (regarding enlargement of time) to Rule 25 will no longer apply to these public-officer substitutions. As to substitution on appeal, the rules of the appellate courts should be consulted. Subdivision (d)(2) For examples of naming the office or title rather than the officeholder, see Annot., 102 A.L.R. 943, 94852; Comment, 50 Mich.L.Rev. 443, 450 (1952); cf supra Notes of Advisory Committee on Rules1963 Amendment Present Rule 25(a)(1), together with present Rule 6(b), results in an inflexible requirement that an action be dismissed as to a deceased party if substitution is not carried out within a fixed period measured from the time of the death. The hardships and inequities of this unyielding requirement plainly appear from the cases. See e.g., Anderson v. Yungkau Iovino v. Waterson cert. denied, Carlin v. Sovino Perry v. Allen Starnes v. Pennsylvania R.R affd per curiam Zdanok v. Glidden Co Moores Federal Practice Federal Practice & Procedure The amended rule establishes a time limit for the motion to substitute based not upon the time of the death, but rather upon the time information of the death as provided by the means of a suggestion of death upon the record, i.e., service of a statement of the fact of the death. Cf. Ill.Ann.Stat., ch. 110,  54(2) (Smith-Hurd 1956). The motion may not be made later than 90 days after the service of the statement unless the period is extended pursuant to Rule 6(b), as amended. See the Advisory Committees Note to amended Rule 6(b). See also the new Official Form 30. A motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made. If a party or the representative of the deceased party desires to limit the time within which another may make the motion, he may do so by suggesting the death upon the record. A motion to substitute made within the prescribed time will ordinarily be granted, but under the permissive language of the first sentence of the amended rule (the court may order) it may be denied by the court in the exercise of a sound discretion if made long after the deathas can occur if the suggestion of death is not made or is delayedand circumstances have arisen rendering it unfair to allow substitution. Cf. Anderson v. Yungkau Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 25 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 25(d)(2) is transferred to become Rule 17(d) because it deals with designation of a public officer, not substitution. Changes Made After Publication and Comment TITLE V. DISCLOSURES AND DISCOVERY Notes of Advisory Committee on Rules1970 Amendments to Discovery Rules This statement is intended to serve as a general introduction to the amendments of Rules 2637, concerning discovery, as well as related amendments of other rules. A separate note of customary scope is appended to amendments proposed for each rule. This statement provides a framework for the consideration of individual rule changes.  Changes in the Discovery Rules The discovery rules, as adopted in 1938, were a striking and imaginative departure from tradition. It was expected from the outset that they would be important, but experience has shown them to play an even larger role than was initially foreseen. Although the discovery rules have been amended since 1938, the changes were relatively few and narrowly focused, made in order to remedy specific defects. The amendments now proposed reflect the first comprehensive review of the discovery rules undertaken since 1938. These amendments make substantial changes in the discovery rules. Those summarized here are among the more important changes. Scope of Discovery Mechanics of Discovery Other changes in the mechanics of discovery are designed to encourage extrajudicial discovery with a minimum of court intervention. Among these are the following: (1) The requirement that a plaintiff seek leave of court for early discovery requests is eliminated or reduced, and motions for a court order under Rule 34 are made unnecessary. Motions under Rule 35 are continued. (2) Answers and objections are to be served together and an enlargement of the time for response is provided. (3) The party seeking discovery, rather than the objecting party, is made responsible for invoking judicial determination of discovery disputes not resolved by the parties. (4) Judicial sanctions are tightened with respect to unjustified insistence upon or objection to discovery. These changes bring Rules 33, 34, and 36 substantially into line with the procedure now provided for depositions. Failure to amend Rule 35 in the same way is based upon two considerations. First, the Columbia Survey (described below) finds that only about 5 percent of medical examinations require court motions, of which about half result in court orders. Second and of greater importance, the interest of the person to be examined in the privacy of his person was recently stressed by the Supreme Court in Schlagenhauf v. Holder Rearrangement of Rules Optional Procedures Other Changes A Field Survey of Discovery Practice Despite widespread acceptance of discovery as an essential part of litigation, disputes have inevitably arisen concerning the values claimed for discovery and abuses alleged to exist. Many disputes about discovery relate to particular rule provisions or court decisions and can be studied in traditional fashion with a view to specific amendment. Since discovery is in large measure extra-judicial, however, even these disputes may be enlightened by a study of discovery in the field. And some of the larger questions concerning discovery can be pursued only by a study of its operation at the law office level and in unreported cases. The Committee, therefore, invited the Project for Effective Justice of Columbia Law School to conduct a field survey of discovery. Funds were obtained from the Ford Foundation and the Walter E. Meyer Research Institute of Law, Inc. The survey was carried on under the direction of Prof. Maurice Rosenberg of Columbia Law School. The Project for Effective Justice has submitted a report to the Committee entitled Field Survey of Federal Pretrial Discovery (hereafter referred to as the Columbia Survey). The Committee is deeply grateful for the benefit of this extensive undertaking and is most appreciative of the cooperation of the Project and the funding organizations. The Committee is particularly grateful to Professor Rosenberg who not only directed the survey but has given much time in order to assist the Committee in assessing the results. The Columbia Survey concludes, in general, that there is no empirical evidence to warrant a fundamental change in the philosophy of the discovery rules. No widespread or profound failings are disclosed in the scope or availability of discovery. The costs of discovery do not appear to be oppressive, as a general matter, either in relation to ability to pay or to the stakes of the litigation. Discovery frequently provides evidence that would not otherwise be available to the parties and thereby makes for a fairer trial or settlement. On the other hand, no positive evidence is found that discovery promotes settlement. More specific findings of the Columbia Survey are described in other Committee notes, in relation to particular rule provisions and amendments. Those interested in more detailed information may obtain it from the Project for Effective Justice. Rearrangement of the Discovery Rules The present discovery rules are structured entirely in terms of individual discovery devices, except for Rule 27 which deals with perpetuation of testimony, and Rule 37 which provides sanctions to enforce discovery. Thus, Rules 26 and 28 to 32 are in terms addressed only to the taking of a deposition of a party or third person. Rules 33 to 36 then deal in succession with four additional discovery devices: Written interrogatories to parties, production for inspection of documents and things, physical or mental examination and requests for admission. Under the rules as promulgated in 1938, therefore, each of the discovery devices was separate and self-contained. A defect of this arrangement is that there is no natural location in the discovery rules for provisions generally applicable to all discovery or to several discovery devices. From 1938 until the present, a few amendments have applied a discovery provision to several rules. For example, in 1948, the scope of deposition discovery in Rule 26(b) and the provision for protective orders in Rule 30(b) were incorporated by reference in Rules 33 and 34. The arrangement was adequate so long as there were few provisions governing discovery generally and these provisions were relatively simple. As will be seen, however, a series of amendments are now proposed which govern most or all of the discovery devices. Proposals of a similar nature will probably be made in the future. Under these circumstances, it is very desirable, even necessary, that the discovery rules contain one rule addressing itself to discovery generally. Rule 26 is obviously the most appropriate rule for this purpose. One of its subdivisions, Rule 26(b), in terms governs only scope of deposition discovery, but it has been expressly incorporated by reference in Rules 33 and 34 and is treated by courts as setting a general standard. By means of a transfer to Rule 26 of the provisions for protective orders now contained in Rule 30(b), and a transfer from Rule 26 of provisions addressed exclusively to depositions, Rule 26 is converted into a rule concerned with discovery generally. It becomes a convenient vehicle for the inclusion of new provisions dealing with the scope, timing, and regulation of discovery. Few additional transfers are needed. See table showing rearrangement of rules, set out below. There are, to be sure, disadvantages in transferring any provision from one rule to another. Familiarity with the present pattern, reinforced by the references made by prior court decisions and the various secondary writings about the rules, is not lightly to be sacrificed. Revision of treatises and other references works is burdensome and costly. Moreover, many States have adopted the existing pattern as a model for their rules. On the other hand, the amendments now proposed will in any event require revision of texts and reference works as well as reconsideration by States following the Federal model. If these amendments are to be incorporated in an understandable way, a rule with general discovery provisions is needed. As will be seen, the proposed rearrangement produces a more coherent and intelligible pattern for the discovery rules taken as a whole. The difficulties described are those encountered whenever statutes are reexamined and revised. Failure to rearrange the discovery rules now would freeze the present scheme, making future change even more difficult.      Table Showing Rearrangement of Rules  Existing Rule No. New Rule No.  26(a) 30(a), 31(a) 26(c) 30(c) 26(d) 32(a) 26(e) 32(b) 26(f) 32(c) 30(a) 30(b) 30(b) 26(c) 32 32(d) Rule 26. Duty to Disclose; General Provisions Governing Discovery (a) Required Disclosures. (1)  Initial Disclosure. (A)  In General. (i) the name and, if known, the address and telephone number of each individual likely to have discoverable informationalong with the subjects of that informationthat the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copyor a description by category and locationof all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing partywho must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. (B)  Proceedings Exempt from Initial Disclosure. (i) an action for review on an administrative record; (ii) a forfeiture action in rem arising from a federal statute; (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence; (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision; (v) an action to enforce or quash an administrative summons or subpoena; (vi) an action by the United States to recover benefit payments; (vii) an action by the United States to collect on a student loan guaranteed by the United States; (viii) a proceeding ancillary to a proceeding in another court; and (ix) an action to enforce an arbitration award. (C)  Time for Initial DisclosuresIn General. (D)  Time for Initial DisclosuresFor Parties Served or Joined Later. (E)  Basis for Initial Disclosure; Unacceptable Excuses. (2)  Disclosure of Expert Testimony. (A)  In General. (B)  Witnesses Who Must Provide a Written Report. (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witnesss qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C)  Witnesses Who Do Not Provide a Written Report. (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. (D)  Time to Disclose Expert Testimony. (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other partys disclosure. (E)  Supplementing the Disclosure. (3)  Pretrial Disclosures. (A)  In General. (i) the name and, if not previously provided, the address and telephone number of each witnessseparately identifying those the party expects to present and those it may call if the need arises; (ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and (iii) an identification of each document or other exhibit, including summaries of other evidenceseparately identifying those items the party expects to offer and those it may offer if the need arises. (B)  Time for Pretrial Disclosures; Objections. (4)  Form of Disclosures. (b) Discovery Scope and Limits. (1)  Scope in General. (2)  Limitations on Frequency and Extent. (A)  When Permitted. (B)  Specific Limitations on Electronically Stored Information. (C)  When Required. (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). (3)  Trial Preparation: Materials. (A)  Documents and Tangible Things. (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B)  Protection Against Disclosure. (C)  Previous Statement. (i) a written statement that the person has signed or otherwise adopted or approved; or (ii) a contemporaneous stenographic, mechanical, electrical, or other recordingor a transcription of itthat recites substantially verbatim the persons oral statement. (4)  Trial Preparation: Experts. (A)  Deposition of an Expert Who May Testify. (B)  Trial-Preparation Protection for Draft Reports or Disclosures. (C)  Trial-Preparation Protection for Communications Between a Partys Attorney and Expert Witnesses. (i) relate to compensation for the experts study or testimony; (ii) identify facts or data that the partys attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the partys attorney provided and that the expert relied on in forming the opinions to be expressed. (D)  Expert Employed Only for Trial Preparation. (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. (E)  Payment. (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the experts facts and opinions. (5)  Claiming Privilege or Protecting Trial-Preparation Materials. (A)  Information Withheld. (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosedand do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (B)  Information Produced. (c) Protective Orders. (1)  In General. (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. (2)  Ordering Discovery. (3)  Awarding Expenses. (d) Timing and Sequence of Discovery. (1)  Timing. (2)  Early Rule 34 Requests. (A)  Time to Deliver. (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. (3)  Sequence. (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. (e) Supplementing Disclosures and Responses. (1)  In General. (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2)  Expert Witness. (f) Conference of the Parties; Planning for Discovery. (1)  Conference Timing. (2)  Conference Content; Parties Responsibilities. (3)  Discovery Plan. (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; (C) any issues about disclosure, 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, includingif the parties agree on a procedure to assert these claims after productionwhether to ask the court to include their agreement in an order under Federal Rule of Evidence 502; (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). (4)  Expedited Schedule. (A) require the parties conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. (g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1)  Signature Required; Effect of Signature. (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. (2)  Failure to Sign. (3)  Sanction for Improper Certification. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Mar. 30, 1970 July 1, 1970 Apr. 29, 1980 Aug. 1, 1980 Apr. 28, 1983 Aug. 1, 1983 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 17, 2000 Dec. 1, 2000 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 28, 2010 Dec. 1, 2010 Apr. 29, 2015 Dec. 1, 2015  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) This and subsequent rules incorporate, modify, and broaden the provisions for depositions under U.S.C., Title 28, [former]  639 (Depositions de bene esse; dedimus potestatem in perpetuam dedimus potestatem; While a number of states permit discovery only from parties or their agents, others either make no distinction between parties or agents of parties and ordinary witnesses, or authorize the taking of ordinary depositions, without restriction, from any persons who have knowledge of relevant facts. See Ark.Civ.Code (Crawford, 1934)  606607; 1 Idaho Code Ann. (1932)  16906; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110,  259.19); Ill.Rev.Stat. (1937) ch. 51,  24; 2 Ind.Stat.Ann. (Burns, 1933)  21501; Ky.Codes (Carroll, 1932) Civ.Pract.  554558; 2 Md.Ann.Code (Bagby, 1924) Art. 35,  21; 2 Minn.Stat. (Mason, 1927)  9820; 1 Mo.Rev.Stat. (1929)  1753, 1759; Neb.Comp.Stat. (1929) ch. 20,  12467; 2 N.H.Pub.Laws (1926) ch. 337,  1; 2 N.D.Comp.Laws Ann. (1913)  7897; 2 Ohio Gen.Code Ann. (Page, 1926)  115256; 1 S.D.Comp.Laws (1929)  271316; Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev.Stat.Ann. (1933)  104517; Wash. Rules of Practice adopted by Supreme Ct., Rule 8, 2 Wash.Rev.Stat.Ann. (Remington, 1932)  3088; W.Va.Code (1931) ch. 57, art. 4,  1. The more common practice in the United States is to take depositions on notice by the party desiring them, without any order from the court, and this has been followed in these rules. See Calif.Code Civ.Proc. (Deering 1937)  2031; 2 Fla.Comp.Gen.Laws Ann. (1927)  44057; 1 Idaho Code Ann. (1932)  16902; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110,  25919); Ill.Rev.Stat. (1937) ch. 51,  24; 2 Ind.Stat.Ann. (Burns, 1933)  21502; Kan.Gen.Stat.Ann. (1935)  602827; Ky.Codes (Carroll, 1932) Civ.Pract.  565; 2 Minn.Stat. (Mason, 1927)  9820; 1 Mo.Rev.Stat. (1929)  1761; 4 Mont.Rev.Codes Ann. (1935)  10651; Nev.Comp.Laws (Hillyer, 1929)  9002; N.C.Code Ann. (1935)  1809; 2 N.D.Comp.Laws Ann. (1913)  7895; Utah Rev.Stat.Ann. (1933)  104518. Note to Subdivision (b) Note to Subdivisions (d), (e), and (f) de bene esse Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) e.g Subdivision (b) Engl v. Aetna Life Ins. Co Mahler v. Pennsylvania R. Co Lewis v. United Air Lines Transportation Corp Engl v. Aetna Life Ins. Co Rousseau v. Langley Olson Transportation Co. v. Socony-Vacuum Co Poppino v. Jones Store Co Benevento v. A. & P. Food Stores, Inc Maryland for use of Montvila v. Pan-American Bus Lines, Inc Gitto v. Italia, Societa Anonima Di Navigazione Rose Silk Mills, Inc. v. Insurance Co. of North America Colpak v. Hetterick Matthies v. Peter F. Connolly Co Matter of Examination of Citizens Casualty Co. of New York United States v. Silliman e.g., Engl v. Aetna Life Ins. Co., supra; Stevenson v. Melady Lewis v. United Air Lines Transport Corp., supra; Application of Zenith Radio Corp Steingut v. Guaranty Trust Co. of New York DeSeversky v. Republic Aviation Corp Moore v. George A. Hormel & Co Hercules Powder Co. v. Rohm & Haas Co Bloomer v. Sirian Lamp Co., supra; Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc Patterson Oil Terminals, Inc. v. Charles Kurz & Co., Inc Pueblo Trading Co. v. Reclamation Dist. No. 1500 Hoffman v. Palmer Notes of Advisory Committee on Rules1963 Amendment This amendment conforms to the amendment of Rule 28(b). See the next-to-last paragraph of the Advisory Committees Note to that amendment. Notes of Advisory Committee on Rules1966 Amendment The requirement that the plaintiff obtain leave of court in order to serve notice of taking of a deposition within 20 days after commencement of the action gives rises to difficulties when the prospective deponent is about to become unavailable for examination. The problem is not confined to admiralty, but has been of special concern in that context because of the mobility of vessels and their personnel. When Rule 26 was adopted as Admiralty Rule 30A in 1961, the problem was alleviated by permitting depositions de bene esse A continuing study is being made in the effort to devise a modification of the 20-day rule appropriate to both the civil and admiralty practice to the end that Rule 26(a) shall state a uniform rule applicable alike to what are now civil actions and suits in admiralty. Meanwhile, the exigencies of maritime litigation require preservation, for the time being at least, of the traditional de bene esse procedure for the post-unification counterpart of the present suit in admiralty. Accordingly, the amendment provides for continued availability of that procedure in admiralty and maritime claims within the meaning of Rule 9(h). Notes of Advisory Committee on Rules1970 Amendment A limited rearrangement of the discovery rules is made, whereby certain rule provisions are transferred, as follows: Existing Rule 26(a) is transferred to Rules 30(a) and 31(a). Existing Rule 26(c) is transferred to Rule 30(c). Existing Rules 26(d), (e), and (f) are transferred to Rule 32. Revisions of the transferred provisions, if any, are discussed in the notes appended to Rules 30, 31, and 32. In addition, Rule 30(b) is transferred to Rule 26(c). The purpose of this rearrangement is to establish Rule 26 as a rule governing discovery in general. (The reasons are set out in the Advisory Committees explanatory statement.) Subdivision (a)Discovery Devices Subdivision (b)Scope of Discovery All provisions as to scope of discovery are subject to the initial qualification that the court may limit discovery in accordance with these rules. Rule 26(c) (transferred from 30(b)) confers broad powers on the courts to regulate or prevent discovery even though the materials sought are within the scope of 26(b), and these powers have always been freely exercised. For example, a partys income tax return is generally held not privileged, 2A Barron & Holtzoff, Federal Practice and Procedure E.g., Wiesenberger v. W. E. Hutton & Co Subdivision (b)(1)In General Cf Moores Federal Practice Subdivision (b)(2)Insurance Policies Cook v. Welty Johanek v. Aberle Discovery of Dollar Limits in Liability Policies in Automobile Tort Cases Some Reflections on the 1957 Amendments to the Texas Rules Bisserier v. Manning Cooper v. Stender Discovery and Insurance Coverage Fournier, Pre-Trial Discovery of Insurance Coverage and Limits The division in reported cases is close. State decisions based on provisions similar to the federal rules are similarly divided. See cases collected in 2A Barron & Holtzoff, Federal Practice and Procedure The amendment resolves this issue in favor of disclosure. Most of the decisions denying discovery, some explicitly, reason from the text of Rule 26(b) that it permits discovery only of matters which will be admissible in evidence or appear reasonably calculated to lead to such evidence; they avoid considerations of policy, regarding them as foreclosed. See Bisserier v. Manning, supra Clauss v. Danker Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation. It will conduce to settlement and avoid protracted litigation in some cases, though in others it may have an opposite effect. The amendment is limited to insurance coverage, which should be distinguished from any other facts concerning defendants financial status (1) because insurance is an asset created specifically to satisfy the claim; (2) because the insurance company ordinarily controls the litigation; (3) because information about coverage is available only from defendant or his insurer; and (4) because disclosure does not involve a significant invasion of privacy. Disclosure is required when the insurer may be liable on part or all of the judgment. Thus, an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its claim. It is immaterial whether the liability is to satisfy the judgment directly or merely to indemnify or reimburse another after he pays the judgment. The provision applies only to persons carrying on an insurance business and thus covers insurance companies and not the ordinary business concern that enters into a contract of indemnification. Cf For some purposes other than discovery, an application for insurance is treated as a part of the insurance agreement. The provision makes clear that, for discovery purposes, the application is not to be so treated. The insurance application may contain personal and financial information concerning the insured, discovery of which is beyond the purpose of this provision. In no instance does disclosure make the facts concerning insurance coverage admissible in evidence. Subdivision (b)(3)Trial Preparation: Materials Hickman v. Taylor Hickman In deciding the Hickman Hickman The major difficulties visible in the existing case law are (1) confusion and disagreement as to whether good cause is made out by a showing of relevance and lack of privilege, or requires an additional showing of necessity, (2) confusion and disagreement as to the scope of the Hickman Basic Standard E.g., Connecticut Mutual Life Ins. Co. v. Shields Houdry Process Corp. v. Commonwealth Oil Refining Co Bell v. Commercial Ins. Co E.g., Lauer v. Tankrederi As to trial-preparation materials, however, the courts are increasingly interpreting good cause as requiring more than relevance. When lawyers have prepared or obtained the materials for trial, all courts require more than relevance; so much is clearly commanded by Hickman e.g., Brown v. New York, N.H. & H. RR Guilford Natl Bank v. Southern Ry Schlagenhauf v. Holder Mitchell v. Bass Hauger v. Chicago, R.I. & Pac. RR Burke v. United States The rules are amended by eliminating the general requirement of good cause from Rule 34 but retaining a requirement of a special showing for trial preparation materials in this subdivision. The required showing is expressed, not in terms of good cause whose generality has tended to encourage confusion and controversy, but in terms of the elements of the special showing to be made: substantial need of the materials in the preparation of the case and inability without undue hardship to obtain the substantial equivalent of the materials by other means. These changes conform to the holdings of the cases, when viewed in light of their facts. Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege. The protective provisions are of course available, and if the party from whom production is sought raises a special issue of privacy (as with respect to income tax returns or grand jury minutes) or points to evidence primarily impeaching, or can show serious burden or expense, the court will exercise its traditional power to decide whether to issue a protective order. On the other hand, the requirement of a special showing for discovery of trial preparation materials reflects the view that each sides informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side. See Field and McKusick, Maine Civil Practice Elimination of a good cause requirement from Rule 34 and the establishment of a requirement of a special showing in this subdivision will eliminate the confusion caused by having two verbally distinct requirements of justification that the courts have been unable to distinguish clearly. Moreover, the language of the subdivision suggests the factors which the courts should consider in determining whether the requisite showing has been made. The importance of the materials sought to the party seeking them in preparation of his case and the difficulty he will have obtaining them by other means are factors noted in the Hickman Consideration of these factors may well lead the court to distinguish between witness statements taken by an investigator, on the one hand, and other parts of the investigative file, on the other. The court in Southern Ry. v. Lanham Lanham, supra Guilford, supra Lanham, supra Brookshire v. Pennsylvania RR Diamond v. Mohawk Rubber Co Tannenbaum v. Walker Cf. Hauger v. Chicago, R.I. & Pac. RR Lanham, supra Pickett v. L. R. Ryan, Inc Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision. Gossman v. A. Duie Pyle, Inc cf. United States v. New York Foreign Trade Zone Operators, Inc Hickman Treatment of Lawyers; Special Protection of Mental Impressions, Conclusions, Opinions, and Legal Theories Concerning the Litigation Hickman Alltmont v. United States cert. denied Hickman Southern Ry. v. Campbell Guilford Natl Bank v. Southern Ry e.g., Brown v. New York, N.H. & H. RR Hanke v. Milwaukee Electric Ry. & Transp. Co Burke v. United States Snyder v. United States Gottlieb v. Bresler Burns v. Mulder Moores Federal Practice Federal Practice and Procedure A complication is introduced by the use made by courts of the good cause requirement of Rule 34, as described above. A court may conclude that trial preparation materials are not work-product because not the result of lawyers work and yet hold that they are not producible because good cause has not been shown. Cf. Guilford Natl Bank v. Southern Ry Subdivision (b)(3) reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or any representative acting on his behalf. The subdivision then goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney or other representative of a party. The Hickman Rules 33 and 36 have been revised in order to permit discovery calling for opinions, contentions, and admissions relating not only to fact but also to the application of law to fact. Under those rules, a party and his attorney or other representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions. But documents or parts of documents containing these matters are protected against discovery by this subdivision. Even though a party may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential documents containing such matters prepared for internal use. Partys Right to Own Statement e.g., Safeway Stores, Inc. v. Reynolds Shupe v. Pennsylvania RR e.g., New York Central RR. v. Carr Belback v. Wilson Freight Forwarding Co Courts which treat a partys statement as though it were that of any witness overlook the fact that the partys statement is, without more, admissible in evidence. Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve. In appropriate cases the court may order a party to be deposed before his statement is produced. E.g., Smith v. Central Linen Service Co McCoy v. General Motors Corp Commentators strongly support the view that a party be able to secure his statement without a showing. 4 Moores Federal Practice Federal Practice and Procedure Developments in the LawDiscovery Statutes Rules cf In order to clarify and tighten the provision on statements by a party, the term statement is defined. The definition is adapted from 18 U.S.C.  3500(e) (Jencks Act). The statement of a party may of course be that of plaintiff or defendant, and it may be that of an individual or of a corporation or other organization. Witness Right to Own Statement Subdivision (b)(4)Trial Preparation: Experts Subsection (b)(4)(A) deals with discovery of information obtained by or through experts who will be called as witnesses at trial. The provision is responsive to problems suggested by a relatively recent line of authorities. Many of these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent among them are food and drug, patent, and condemnation cases. See, e.g., United States v. Nysco Laboratories, Inc E. I. du Pont de Nemours & Co. v. Phillips Petroleum Co Cold Metal Process Co. v. Aluminum Co. of America Sachs v. Aluminum Co. of America United States v. 50.34 Acres of Land In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversarys expert will take or the data on which he will base his judgment on the stand. McGlothlin, Some Practical Problems in Proof of Economic, Scientific, and Technical Facts These considerations appear to account for the broadening of discovery against experts in the cases cited where expert testimony was central to the case. In some instances, the opinions are explicit in relating expanded discovery to improved cross-examination and rebuttal at trial. Franks v. National Dairy Products Corp United States v. 23.76 Acres United States v. 48 Jars, etc E.g., United States v. Certain Parcels of Land United States v. Certain Acres Although the trial problems flowing from lack of discovery of expert witnesses are most acute and noteworthy when the case turns largely on experts, the same problems are encountered when a single expert testifies. Thus, subdivision (b)(4)(A) draws no line between complex and simple cases, or between cases with many experts and those with but one. It establishes by rule substantially the procedure adopted by decision of the court in Knighton v. Villian & Fassio Discovery and Use of an Adverse Partys Expert Information Discovery and Experts under the Federal Rules of Civil Procedure Past judicial restrictions on discovery of an adversarys expert, particularly as to his opinions, reflect the fear that one side will benefit unduly from the others better preparation. The procedure established in subsection (b)(4)(A) holds the risk to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert witnesses will be. A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponents experts. Subdivision (b)(4)(A) provides for discovery of an expert who is to testify at the trial. A party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give. The court may order further discovery, and it has ample power to regulate its timing and scope and to prevent abuse. Ordinarily, the order for further discovery shall compensate the expert for his time, and may compensate the party who intends to use the expert for past expenses reasonably incurred in obtaining facts or opinions from the expert. Those provisions are likely to discourage abusive practices. Subdivision (b)(4)(B) deals with an expert who has been retained or specially employed by the party in anticipation of litigation or preparation for trial (thus excluding an expert who is simply a general employee of the party not specially employed on the case), but who is not expected to be called as a witness. Under its provisions, a party may discover facts known or opinions held by such an expert only on a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. Subdivision (b)(4)(B) is concerned only with experts retained or specially consulted in relation to trial preparation. Thus the subdivision precludes discovery against experts who were informally consulted in preparation for trial, but not retained or specially employed. As an ancillary procedure, a party may on a proper showing require the other party to name experts retained or specially employed, but not those informally consulted. These new provisions of subdivision (b)(4) repudiate the few decisions that have held an experts information privileged simply because of his status as an expert, e.g., American Oil Co. v. Pennsylvania Petroleum Products Co Louisell, Modern California Discovery United States v. McKay e.g., United States v. 23.76 Acres of Land supra Moores Federal Practice Under subdivision (b)(4)(C), the court is directed or authorized to issue protective orders, including an order that the expert be paid a reasonable fee for time spent in responding to discovery, and that the party whose expert is made subject to discovery be paid a fair portion of the fees and expenses that the party incurred in obtaining information from the expert. The court may issue the latter order as a condition of discovery, or it may delay the order until after discovery is completed. These provisions for fees and expenses meet the objection that it is unfair to permit one side to obtain without cost the benefit of an experts work for which the other side has paid, often a substantial sum. E.g., Lewis v. United Air Lines Transp. Corp Walsh v. Reynolds Metal Co Cf. Boynton v. R. J. Reynolds Tobacco Co In instances of discovery under subdivision (b)(4)(B), the court is directed to award fees and expenses to the other party, since the information is of direct value to the discovering partys preparation of his case. In ordering discovery under (b)(4)(A)(ii), the court has discretion whether to award fees and expenses to the other party; its decision should depend upon whether the discovering party is simply learning about the other partys case or is going beyond this to develop his own case. Even in cases where the court is directed to issue a protective order, it may decline to do so if it finds that manifest injustice would result. Thus, the court can protect, when necessary and appropriate, the interests of an indigent party. Subdivision (c)Protective Orders In addition, drafting changes are made to carry out and clarify the sense of the rule. Insertions are made to avoid any possible implication that a protective order does not extend to time as well as to place or may not safeguard against undue burden or expense. The new reference to trade secrets and other confidential commercial information reflects existing law. The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection. See, e.g., Covey Oil Co. v. Continental Oil Co Julius M. Ames Co. v. Bostitch, Inc The subdivision contains new matter relating to sanctions. When a motion for a protective order is made and the court is disposed to deny it, the court may go a step further and issue an order to provide or permit discovery. This will bring the sanctions of Rule 37(b) directly into play. Since the court has heard the contentions of all interested persons, an affirmative order is justified. See Rosenberg, Sanctions to Effectuate Pretrial Discovery Subdivision (d)Sequence and Priority A priority rule developed by some courts, which confers priority on the party who first serves notice of taking a deposition, is unsatisfactory in several important respects: First, this priority rule permits a party to establish a priority running to all depositions as to which he has given earlier notice. Since he can on a given day serve notice of taking many depositions he is in a position to delay his adversarys taking of depositions for an inordinate time. Some courts have ruled that deposition priority also permits a party to delay his answers to interrogatories and production of documents. E.g., E. I. du Pont de Nemours & Co. v. Phillips Petroleum Co but cf. Sturdevant v. Sears, Roebuck & Co Second, since notice is the key to priority, if both parties wish to take depositions first a race results. See Caldwell-Clements, Inc. v. McGraw-Hill Pub. Co Third, although courts have ordered a change in the normal sequence of discovery on a number of occasions, e.g., Kaeppler v. James H. Matthews & Co Park & Tilford Distillers Corp. v. Distillers Co Federal Practice and Procedure Priority of Pretrial Examination in the Federal CourtsA Comment The Pleading and Pretrial of an Antitrust Claim Some Refinements in Federal Discovery Procedure Developments in the Law-Discovery Despite these difficulties, some courts have adhered to the priority rule, presumably because it provides a test which is easily understood and applied by the parties without much court intervention. It thus permits deposition discovery to function extrajudicially, which the rules provide for and the courts desire. For these same reasons, courts are reluctant to make numerous exceptions to the rule. The Columbia Survey makes clear that the problem of priority does not affect litigants generally. It found that most litigants do not move quickly to obtain discovery. In over half of the cases, both parties waited at least 50 days. During the first 20 days after commencement of the actionthe period when defendant might assure his priority by noticing depositions16 percent of the defendants acted to obtain discovery. A race could not have occurred in more than 16 percent of the cases and it undoubtedly occurred in fewer. On the other hand, five times as many defendants as plaintiffs served notice of deposition during the first 19 days. To the same effect, see Comment, Tactical Use and Abuse of Depositions Under the Federal Rules These findings do not mean, however, that the priority rule is satisfactory or that a problem of priority does not exist. The court decisions show that parties do bottle on this issue and carry their disputes to court. The statistics show that these court cases are not typical. By the same token, they reveal that more extensive exercise of judicial discretion to vary the priority will not bring a flood of litigation, and that a change in the priority rule will in fact affect only a small fraction of the cases. It is contended by some that there is no need to alter the existing priority practice. In support, it is urged that there is no evidence that injustices in fact result from present practice and that, in any event, the courts can and do promulgate local rules, as in New York, to deal with local situations and issue orders to avoid possible injustice in particular cases. Subdivision (d) is based on the contrary view that the rule of priority based on notice is unsatisfactory and unfair in its operation. Subdivision (d) follows an approach adapted from Civil Rule 4 of the District Court for the Southern District of New York. That rule provides that starting 40 days after commencement of the action, unless otherwise ordered by the court, the fact that one part is taking a deposition shall not prevent another party from doing so concurrently. In practice, the depositions are not usually taken simultaneously; rather, the parties work out arrangements for alternation in the taking of depositions. One party may take a complete deposition and then the other, or, if the depositions are extensive, one party deposes for a set time, and then the other. See Caldwell-Clements, Inc. v. McGraw-Hill Pub. Co In principle, one partys initiation of discovery should not wait upon the others completion, unless delay is dictated by special considerations. Clearly the principle is feasible with respect to all methods of discovery other than depositions. And the experience of the Southern District of New York shows that the principle can be applied to depositions as well. The courts have not had an increase in motion business on this matter. Once it is clear to lawyers that they bargain on an equal footing, they are usually able to arrange for an orderly succession of depositions without judicial intervention. Professor Moore has called attention to Civil Rule 4 and suggested that it may usefully be extended to other areas. 4 Moores Federal Practice The court may upon motion and by order grant priority in a particular case. But a local court rule purporting to confer priority in certain classes of cases would be inconsistent with this subdivision and thus void. Subdivision (e)Supplementation of Responses Arguments can be made both ways. Imposition of a continuing burden reduces the proliferation of additional sets of interrogatories. Some courts have adopted local rules establishing such a burden. E.g Taggart v. Vermont Transp. Co E.g., Chenault v. Nebraska Farm Products, Inc Novick v. Pennsylvania RR Subdivision (e) provides that a party is not under a continuing burden except as expressly provided. Cf Diversified Products Corp. v. Sports Center Co Another exception is made for the situation in which a party, or more frequently his lawyer, obtains actual knowledge that a prior response is incorrect. This exception does not impose a duty to check the accuracy of prior responses, but it prevents knowing concealment by a party or attorney. Finally, a duty to supplement may be imposed by order of the court in a particular case (including an order resulting from a pretrial conference) or by agreement of the parties. A party may of course make a new discovery request which requires supplementation of prior responses. The duty will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate. Notes of Advisory Committee on Rules1980 Amendment Subdivision (f) The Committee believes that abuse of discovery, while very serious in certain cases, is not so general as to require such basic changes in the rules that govern discovery in all cases. A very recent study of discovery in selected metropolitan districts tends to support its belief. P. Connolly, E. Holleman, & M. Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery To this end this subdivision provides that counsel who has attempted without success to effect with opposing counsel a reasonable program or plan for discovery is entitled to the assistance of the court. It is not contemplated that requests for discovery conferences will be made routinely. A relatively narrow discovery dispute should be resolved by resort to Rules 26(c) or 37(a), and if it appears that a request for a conference is in fact grounded in such a dispute, the court may refer counsel to those rules. If the court is persuaded that a request is frivolous or vexatious, it can strike it. See Rules 11 and 7(b)(2). A number of courts routinely consider discovery matters in preliminary pretrial conferences held shortly after the pleadings are closed. This subdivision does not interfere with such a practice. It authorizes the court to combine a discovery conference with a pretrial conference under Rule 16 if a pretrial conference is held sufficiently early to prevent or curb abuse. Notes of Advisory Committee on Rules1983 Amendment Excessive discovery and evasion or resistance to reasonable discovery requests pose significant problems. Recent studies have made some attempt to determine the sources and extent of the difficulties. See Brazil, Civil Discovery: Lawyers Views of its Effectiveness, Principal Problems and Abuses Judicial Controls and the Civil Litigative Process: Discovery A Study of Sanctions for Discovery Abuse The Proposed Changes in the Discovery Rules The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. Hickman v. Taylor Given our adversary tradition and the current discovery rules, it is not surprising that there are many opportunities, if not incentives, for attorneys to engage in discovery that, although authorized by the broad, permissive terms of the rules, nevertheless results in delay. See Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change Herbert v. Lando Subdivision (a); Discovery Methods Subdivision (b); Discovery Scope and Limits e.g., Carlson Cos. v. Sperry & Hutchinson Co Dolgow v. Anderson Mitchell v. American Tobacco Co Welty v. Clute e.g., Apco Oil Co. v. Certified Transp., Inc Federal Practice and Procedure: Civil The first element of the standard, Rule 26(b)(1)(i), is designed to minimize redundancy in discovery and encourage attorneys to be sensitive to the comparative costs of different methods of securing information. Subdivision (b)(1)(ii) also seeks to reduce repetitiveness and to oblige lawyers to think through their discovery activities in advance so that full utilization is made of each deposition, document request, or set of interrogatories. The elements of Rule 26(b)(1)(iii) address the problem of discovery that is disproportionate to the individual lawsuit as measured by such matters as its nature and complexity, the importance of the issues at stake in a case seeking damages, the limitations on a financially weak litigant to withstand extensive opposition to a discovery program or to respond to discovery requests, and the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved. The court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent. The rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis. See Connolly, Holleman & Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery The court may act on motion, or its own initiative. It is entirely appropriate to resort to the amended rule in conjunction with a discovery conference under Rule 26(f) or one of the other pretrial conferences authorized by the rules. Subdivision (g); Signing of Discovery Requests, Responses, and Objections If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which parallels the amendments to Rule 11, requires an attorney or unrepresented party to sign each discovery request, response, or objection. Motions relating to discovery are governed by Rule 11. However, since a discovery request, response, or objection usually deals with more specific subject matter than motions or papers, the elements that must be certified in connection with the former are spelled out more completely. The signature is a certification of the elements set forth in Rule 26(g). Although the certification duty requires the lawyer to pause and consider the reasonableness of his request, response, or objection, it is not meant to discourage or restrict necessary and legitimate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection. The duty to make a reasonable inquiry is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11. See the Advisory Committee Note to Rule 11. See also Kinee v. Abraham Lincoln Fed. Sav. & Loan Assn Rule 26(g) does not require the signing attorney to certify the truthfulness of the clients factual responses to a discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand. Thus, the lawyers certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as those in Rules 30(e) and 33. Nor does the rule require a party or an attorney to disclose privileged communications or work product in order to show that a discovery request, response, or objection is substantially justified. The provisions of Rule 26(c), including appropriate orders after in camera The signing requirement means that every discovery request, response, or objection should be grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law. This standard is heavily dependent on the circumstances of each case. The certification speaks as of the time it is made. The duty to supplement discovery responses continues to be governed by Rule 26(e). Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision. ACF Industries, Inc. v. EEOC National Hockey League v. Metropolitan Hockey Club The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, Civil Discovery: Lawyers Views of its Effectiveness, Principal Problems and Abuses A Study of Sanctions for Discovery Abuse Roadway Express, Inc., v. Piper Martin v. Bell Helicopter Co Sanctions Imposed by Courts on Attorneys Who Abuse the Judicial Process The sanctioning process must comport with due process requirements. The kind of notice and hearing required will depend on the facts of the case and the severity of the sanction being considered. To prevent the proliferation of the sanction procedure and to avoid multiple hearings, discovery in any sanction proceeding normally should be permitted only when it is clearly required by the interests of justice. In most cases the court will be aware of the circumstances and only a brief hearing should be necessary. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Subdivision (a) A major purpose of the revision is to accelerate the exchange of basic information about the case and to eliminate the paper work involved in requesting such information, and the rule should be applied in a manner to achieve those objectives. The concepts of imposing a duty of disclosure were set forth in Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change Vand. L. Rev The Federal Rules, the Adversary Process, and Discovery Reform U. Pitt. L. Rev The rule is based upon the experience of district courts that have required disclosure of some of this information through local rules, court-approved standard interrogatories, and standing orders. Most have required pretrial disclosure of the kind of information described in Rule 26(a)(3). Many have required written reports from experts containing information like that specified in Rule 26(a)(2)(B). While far more limited, the experience of the few state and federal courts that have required pre-discovery exchange of core information such as is contemplated in Rule 26(a)(1) indicates that savings in time and expense can be achieved, particularly if the litigants meet and discuss the issues in the case as a predicate for this exchange and if a judge supports the process, as by using the results to guide further proceedings in the case. Courts in Canada and the United Kingdom have for many years required disclosure of certain information without awaiting a request from an adversary. Paragraph (1) Authorization of these local variations is, in large measure, included in order to accommodate the Civil Justice Reform Act of 1990, which implicitly directs districts to experiment during the study period with differing procedures to reduce the time and expense of civil litigation. The civil justice delay and expense reduction plans adopted by the courts under the Act differ as to the type, form, and timing of disclosures required. Section 105(c)(1) of the Act calls for a report by the Judicial Conference to Congress by December 31, 1995 Subparagraph (A) requires identification of all persons who, based on the investigation conducted thus far, are likely to have discoverable information relevant to the factual disputes between the parties. All persons with such information should be disclosed, whether or not their testimony will be supportive of the position of the disclosing party. As officers of the court, counsel are expected to disclose the identity of those persons who may be used by them as witnesses or who, if their potential testimony were known, might reasonably be expected to be deposed or called as a witness by any of the other parties. Indicating briefly the general topics on which such persons have information should not be burdensome, and will assist other parties in deciding which depositions will actually be needed. Subparagraph (B) is included as a substitute for the inquiries routinely made about the existence and location of documents and other tangible things in the possession, custody, or control of the disclosing party. Although, unlike subdivision (a)(3)(C), an itemized listing of each exhibit is not required, the disclosure should describe and categorize, to the extent identified during the initial investigation, the nature and location of potentially relevant documents and records, including computerized data and other electronically-recorded information, sufficiently to enable opposing parties (1) to make an informed decision concerning which documents might need to be examined, at least initially, and (2) to frame their document requests in a manner likely to avoid squabbles resulting from the wording of the requests. As with potential witnesses, the requirement for disclosure of documents applies to all potentially relevant items then known to the party, whether or not supportive of its contentions in the case. Unlike subparagraphs (C) and (D), subparagraph (B) does not require production of any documents. Of course, in cases involving few documents a disclosing party may prefer to provide copies of the documents rather than describe them, and the rule is written to afford this option to the disclosing party. If, as will be more typical, only the description is provided, the other parties are expected to obtain the documents desired by proceeding under Rule 34 or through informal requests. The disclosing party does not, by describing documents under subparagraph (B), waive its right to object to production on the basis of privilege or work product protection, or to assert that the documents are not sufficiently relevant to justify the burden or expense of production. The initial disclosure requirements of subparagraphs (A) and (B) are limited to identification of potential evidence relevant to disputed facts alleged with particularity in the pleadings. There is no need for a party to identify potential evidence with respect to allegations that are admitted. Broad, vague, and conclusory allegations sometimes tolerated in notice pleadingfor example, the assertion that a product with many component parts is defective in some unspecified mannershould not impose upon responding parties the obligation at that point to search for and identify all persons possibly involved in, or all documents affecting, the design, manufacture, and assembly of the product. The greater the specificity and clarity of the allegations in the pleadings, the more complete should be the listing of potential witnesses and types of documentary evidence. Although paragraphs (1)(A) and (1)(B) by their terms refer to the factual disputes defined in the pleadings, the rule contemplates that these issues would be informally refined and clarified during the meeting of the parties under subdivision (f) and that the disclosure obligations would be adjusted in the light of these discussions. The disclosure requirements should, in short, be applied with common sense in light of the principles of Rule 1, keeping in mind the salutary purposes that the rule is intended to accomplish. The litigants should not indulge in gamesmanship with respect to the disclosure obligations. Subparagraph (C) imposes a burden of disclosure that includes the functional equivalent of a standing Request for Production under Rule 34. A party claiming damages or other monetary relief must, in addition to disclosing the calculation of such damages, make available the supporting documents for inspection and copying as if a request for such materials had been made under Rule 34. This obligation applies only with respect to documents then reasonably available to it and not privileged or protected as work product. Likewise, a party would not be expected to provide a calculation of damages which, as in many patent infringement actions, depends on information in the possession of another party or person. Subparagraph (D) replaces subdivision (b)(2) of Rule 26, and provides that liability insurance policies be made available for inspection and copying. The last two sentences of that subdivision have been omitted as unnecessary, not to signify any change of law. The disclosure of insurance information does not thereby render such information admissible in evidence. See Rule 411, Federal Rules of Evidence. Nor does subparagraph (D) require disclosure of applications for insurance, though in particular cases such information may be discoverable in accordance with revised subdivision (a)(5). Unless the court directs a different time, the disclosures required by subdivision (a)(1) are to be made at or within 10 days after the meeting of the parties under subdivision (f). One of the purposes of this meeting is to refine the factual disputes with respect to which disclosures should be made under paragraphs (1)(A) and (1)(B), particularly if an answer has not been filed by a defendant, or, indeed, to afford the parties an opportunity to modify by stipulation the timing or scope of these obligations. The time of this meeting is generally left to the parties provided it is held at least 14 days before a scheduling conference is held or before a scheduling order is due under Rule 16(b). In cases in which no scheduling conference is held, this will mean that the meeting must ordinarily be held within 75 days after a defendant has first appeared in the case and hence that the initial disclosures would be due no later than 85 days after the first appearance of a defendant. Before making its disclosures, a party has the obligation under subdivision (g)(1) to make a reasonable inquiry into the facts of the case. The rule does not demand an exhaustive investigation at this stage of the case, but one that is reasonable under the circumstances, focusing on the facts that are alleged with particularity in the pleadings. The type of investigation that can be expected at this point will vary based upon such factors as the number and complexity of the issues; the location, nature, number, and availability of potentially relevant witnesses and documents; the extent of past working relationships between the attorney and the client, particularly in handling related or similar litigation; and of course how long the party has to conduct an investigation, either before or after filing of the case. As provided in the last sentence of subdivision (a)(1), a party is not excused from the duty of disclosure merely because its investigation is incomplete. The party should make its initial disclosures based on the pleadings and the information then reasonably available to it. As its investigation continues and as the issues in the pleadings are clarified, it should supplement its disclosures as required by subdivision (e)(1). A party is not relieved from its obligation of disclosure merely because another party has not made its disclosures or has made an inadequate disclosure. It will often be desirable, particularly if the claims made in the complaint are broadly stated, for the parties to have their Rule 26(f) meeting early in the case, perhaps before a defendant has answered the complaint or had time to conduct other than a cursory investigation. In such circumstances, in order to facilitate more meaningful and useful initial disclosures, they can and should stipulate to a period of more than 10 days after the meeting in which to make these disclosures, at least for defendants who had no advance notice of the potential litigation. A stipulation at an early meeting affording such a defendant at least 60 days after receiving the complaint in which to make its disclosures under subdivision (a)(1)a period that is two weeks longer than the time formerly specified for responding to interrogatories served with a complaintshould be adequate and appropriate in most cases. Paragraph (2) Expert Witness Testimony and the Federal Rules of Evidence: Insuring Adequate Assurance of Trustworthiness U. Ill. L. Rev Paragraph (2)(B) requires that persons retained or specially employed to provide expert testimony, or whose duties as an employee of the party regularly involve the giving of expert testimony, must prepare a detailed and complete written report, stating the testimony the witness is expected to present during direct examination, together with the reasons therefor. The information disclosed under the former rule in answering interrogatories about the substance of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness. Revised Rule 37(c)(1) provides an incentive for full disclosure; namely, that a party will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed. Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed. Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness. The report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the experts opinions. Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinionswhether or not ultimately relied upon by the expertare privileged or otherwise protected from disclosure when such persons are testifying or being deposed. Revised subdivision (b)(4)(A) authorizes the deposition of expert witnesses. Since depositions of experts required to prepare a written report may be taken only after the report has been served, the length of the deposition of such experts should be reduced, and in many cases the report may eliminate the need for a deposition. Revised subdivision (e)(1) requires disclosure of any material changes made in the opinions of an expert from whom a report is required, whether the changes are in the written report or in testimony given at a deposition. For convenience, this rule and revised Rule 30 continue to use the term expert to refer to those persons who will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters. The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report. By local rule, order, or written stipulation, the requirement of a written report may be waived for particular experts or imposed upon additional persons who will provide opinions under Rule 702. Paragraph (3) Subparagraph (A) requires the parties to designate the persons whose testimony they may present as substantive evidence at trial, whether in person or by deposition. Those who will probably be called as witnesses should be listed separately from those who are not likely to be called but who are being listed in order to preserve the right to do so if needed because of developments during trial. Revised Rule 37(c)(1) provides that only persons so listed may be used at trial to present substantive evidence. This restriction does not apply unless the omission was without substantial justification and hence would not bar an unlisted witness if the need for such testimony is based upon developments during trial that could not reasonably have been anticipated e.g Listing a witness does not obligate the party to secure the attendance of the person at trial, but should preclude the party from objecting if the person is called to testify by another party who did not list the person as a witness. Subparagraph (B) requires the party to indicate which of these potential witnesses will be presented by deposition at trial. A party expecting to use at trial a deposition not recorded by stenographic means is required by revised Rule 32 to provide the court with a transcript of the pertinent portions of such depositions. This rule requires that copies of the transcript of a nonstenographic deposition be provided to other parties in advance of trial for verification, an obvious concern since counsel often utilize their own personnel to prepare transcripts from audio or video tapes. By order or local rule, the court may require that parties designate the particular portions of stenographic depositions to be used at trial. Subparagraph (C) requires disclosure of exhibits, including summaries (whether to be offered in lieu of other documentary evidence or to be used as an aid in understanding such evidence), that may be offered as substantive evidence. The rule requires a separate listing of each such exhibit, though it should permit voluminous items of a similar or standardized character to be described by meaningful categories. For example, unless the court has otherwise directed, a series of vouchers might be shown collectively as a single exhibit with their starting and ending dates. As with witnesses, the exhibits that will probably be offered are to be listed separately from those which are unlikely to be offered but which are listed in order to preserve the right to do so if needed because of developments during trial. Under revised Rule 37(c)(1) the court can permit use of unlisted documents the need for which could not reasonably have been anticipated in advance of trial. Upon receipt of these final pretrial disclosures, other parties have 14 days (unless a different time is specified by the court) to disclose any objections they wish to preserve to the usability of the deposition testimony or to the admissibility of the documentary evidence (other than under Rules 402 and 403 of the Federal Rules of Evidence). Similar provisions have become commonplace either in pretrial orders or by local rules, and significantly expedite the presentation of evidence at trial, as well as eliminate the need to have available witnesses to provide foundation testimony for most items of documentary evidence. The listing of a potential objection does not constitute the making of that objection or require the court to rule on the objection; rather, it preserves the right of the party to make the objection when and as appropriate during trial. The court may, however, elect to treat the listing as a motion in limine and rule upon the objections in advance of trial to the extent appropriate. The time specified in the rule for the final pretrial disclosures is relatively close to the trial date. The objective is to eliminate the time and expense in making these disclosures of evidence and objections in those cases that settle shortly before trial, while affording a reasonable time for final preparation for trial in those cases that do not settle. In many cases, it will be desirable for the court in a scheduling or pretrial order to set an earlier time for disclosures of evidence and provide more time for disclosing potential objections. Paragraph (4) Paragraph (5) Subdivision (b) Second, former paragraph (2), relating to insurance, has been relocated as part of the required initial disclosures under subdivision (a)(1)(D), and revised to provide for disclosure of the policy itself. Third, paragraph (4)(A) is revised to provide that experts who are expected to be witnesses will be subject to deposition prior to trial, conforming the norm stated in the rule to the actual practice followed in most courts, in which depositions of experts have become standard. Concerns regarding the expense of such depositions should be mitigated by the fact that the experts fees for the deposition will ordinarily be borne by the party taking the deposition. The requirement under subdivision (a)(2)(B) of a complete and detailed report of the expected testimony of certain forensic experts may, moreover, eliminate the need for some such depositions or at least reduce the length of the depositions. Accordingly, the deposition of an expert required by subdivision (a)(2)(B) to provide a written report may be taken only after the report has been served. Paragraph (4)(C), bearing on compensation of experts, is revised to take account of the changes in paragraph (4)(A). Paragraph (5) is a new provision. A party must notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product protection. To withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection. The party must also provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection. Although the person from whom the discovery is sought decides whether to claim a privilege or protection, the court ultimately decides whether, if this claim is challenged, the privilege or protection applies. Providing information pertinent to the applicability of the privilege or protection should reduce the need for in camera examination of the documents. The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories. A party can seek relief through a protective order under subdivision (c) if compliance with the requirement for providing this information would be an unreasonable burden. In rare circumstances some of the pertinent information affecting applicability of the claim, such as the identity of the client, may itself be privileged; the rule provides that such information need not be disclosed. The obligation to provide pertinent information concerning withheld privileged materials applies only to items otherwise discoverable. If a broad discovery request is madefor example, for all documents of a particular type during a twenty year periodand the responding party believes in good faith that production of documents for more than the past three years would be unduly burdensome, it should make its objection to the breadth of the request and, with respect to the documents generated in that three year period, produce the unprivileged documents and describe those withheld under the claim of privilege. If the court later rules that documents for a seven year period are properly discoverable, the documents for the additional four years should then be either produced (if not privileged) or described (if claimed to be privileged). Subdivision (c) Subdivision (d) The meeting of counsel is to take place as soon as practicable and in any event at least 14 days before the date of the scheduling conference under Rule 16(b) or the date a scheduling order is due under Rule 16(b). The court can assure that discovery is not unduly delayed either by entering a special order or by setting the case for a scheduling conference. Subdivision (e) The revision also clarifies that the obligation to supplement responses to formal discovery requests applies to interrogatories, requests for production, and requests for admissions, but not ordinarily to deposition testimony. However, with respect to experts from whom a written report is required under subdivision (a)(2)(B), changes in the opinions expressed by the expert whether in the report or at a subsequent deposition are subject to a duty of supplemental disclosure under subdivision (e)(1). The obligation to supplement disclosures and discovery responses applies whenever a party learns that its prior disclosures or responses are in some material respect incomplete or incorrect. There is, however, no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition or when an expert during a deposition corrects information contained in an earlier report. Subdivision (f) The provisions relating to a conference with the court are removed from subdivision (f). This change does not signal any lessening of the importance of judicial supervision. Indeed, there is a greater need for early judicial involvement to consider the scope and timing of the disclosure requirements of Rule 26(a) and the presumptive limits on discovery imposed under these rules or by local rules. Rather, the change is made because the provisions addressing the use of conferences with the court to control discovery are more properly included in Rule 16, which is being revised to highlight the courts powers regarding the discovery process. The desirability of some judicial control of discovery can hardly be doubted. Rule 16, as revised, requires that the court set a time for completion of discovery and authorizes various other orders affecting the scope, timing, and extent of discovery and disclosures. Before entering such orders, the court should consider the views of the parties, preferably by means of a conference, but at the least through written submissions. Moreover, it is desirable that the parties proposals regarding discovery be developed through a process where they meet in person, informally explore the nature and basis of the issues, and discuss how discovery can be conducted most efficiently and economically. As noted above, former subdivision (f) envisioned the development of proposed discovery plans as an optional procedure to be used in relatively few cases. The revised rule directs that in all cases not exempted by local rule or special order the litigants must meet in person and plan for discovery. Following this meeting, the parties submit to the court their proposals for a discovery plan and can begin formal discovery. Their report will assist the court in seeing that the timing and scope of disclosures under revised Rule 26(a) and the limitations on the extent of discovery under these rules and local rules are tailored to the circumstances of the particular case. To assure that the court has the litigants proposals before deciding on a scheduling order and that the commencement of discovery is not delayed unduly, the rule provides that the meeting of the parties take place as soon as practicable and in any event at least 14 days before a scheduling conference is held or before a scheduling order is due under Rule 16(b). (Rule 16(b) requires that a scheduling order be entered within 90 days after the first appearance of a defendant or, if earlier, within 120 days after the complaint has been served on any defendant.) The obligation to participate in the planning process is imposed on all parties that have appeared in the case, including defendants who, because of a pending Rule 12 motion, may not have yet filed an answer in the case. Each such party should attend the meeting, either through one of its attorneys or in person if unrepresented. If more parties are joined or appear after the initial meeting, an additional meeting may be desirable. Subdivision (f) describes certain matters that should be accomplished at the meeting and included in the proposed discovery plan. This listing does not exclude consideration of other subjects, such as the time when any dispositive motions should be filed and when the case should be ready for trial. The parties are directed under subdivision (a)(1) to make the disclosures required by that subdivision at or within 10 days after this meeting. In many cases the parties should use the meeting to exchange, discuss, and clarify their respective disclosures. In other cases, it may be more useful if the disclosures are delayed until after the parties have discussed at the meeting the claims and defenses in order to define the issues with respect to which the initial disclosures should be made. As discussed in the Notes to subdivision (a)(1), the parties may also need to consider whether a stipulation extending this 10-day period would be appropriate, as when a defendant would otherwise have less than 60 days after being served in which to make its initial disclosure. The parties should also discuss at the meeting what additional information, although not subject to the disclosure requirements, can be made available informally without the necessity for formal discovery requests. The report is to be submitted to the court within 10 days after the meeting and should not be difficult to prepare. In most cases counsel should be able to agree that one of them will be responsible for its preparation and submission to the court. Form 35 has been added in the Appendix to the Rules, both to illustrate the type of report that is contemplated and to serve as a checklist for the meeting. The litigants are expected to attempt in good faith to agree on the contents of the proposed discovery plan. If they cannot agree on all aspects of the plan, their report to the court should indicate the competing proposals of the parties on those items, as well as the matters on which they agree. Unfortunately, there may be cases in which, because of disagreements about time or place or for other reasons, the meeting is not attended by all parties or, indeed, no meeting takes place. In such situations, the reportor reportsshould describe the circumstances and the court may need to consider sanctions under Rule 37(g). By local rule or special order, the court can exempt particular cases or types of cases from the meet-and-confer requirement of subdivision (f). In general this should include any types of cases which are exempted by local rule from the requirement for a scheduling order under Rule 16(b), such as cases in which there will be no discovery ( e.g e.g e.g Subdivision (g) Committee Notes on Rules2000 Amendment Purposes of amendments The initial disclosure requirements added by the 1993 amendments permitted local rules directing that disclosure would not be required or altering its operation. The inclusion of the opt out provision reflected the strong opposition to initial disclosure felt in some districts, and permitted experimentation with differing disclosure rules in those districts that were favorable to disclosure. The local option also recognized thatpartly in response to the first publication in 1991 of a proposed disclosure rulemany districts had adopted a variety of disclosure programs under the aegis of the Civil Justice Reform Act. It was hoped that developing experience under a variety of disclosure systems would support eventual refinement of a uniform national disclosure practice. In addition, there was hope that local experience could identify categories of actions in which disclosure is not useful. A striking array of local regimes in fact emerged for disclosure and related features introduced in 1993. See Implementation of Disclosure in United States District Courts, With Specific Attention to Courts Responses to Selected Amendments to Federal Rule of Civil Procedure 26 March 30, 1998 Alternative Proposals for Reduction of Cost and Delay: Assessment of Principles, Guidelines and Techniques At the Committees request, the Federal Judicial Center undertook a survey in 1997 to develop information on current disclosure and discovery practices. See Discovery and Disclosure Practice, Problems, and Proposals for Change The Committee has discerned widespread support for national uniformity. Many lawyers have experienced difficulty in coping with divergent disclosure and other practices as they move from one district to another. Lawyers surveyed by the Federal Judicial Center ranked adoption of a uniform national disclosure rule second among proposed rule changes (behind increased availability of judges to resolve discovery disputes) as a means to reduce litigation expenses without interfering with fair outcomes. Discovery and Disclosure Practice, supra These amendments restore national uniformity to disclosure practice. Uniformity is also restored to other aspects of discovery by deleting most of the provisions authorizing local rules that vary the number of permitted discovery events or the length of depositions. Local rule options are also deleted from Rules 26(d) and (f). Subdivision (a)(1) See The initial disclosure obligation of subdivisions (a)(1)(A) and (B) has been narrowed to identification of witnesses and documents that the disclosing party may use to support its claims or defenses. Use includes any use at a pretrial conference, to support a motion, or at trial. The disclosure obligation is also triggered by intended use in discovery, apart from use to respond to a discovery request; use of a document to question a witness during a deposition is a common example. The disclosure obligation attaches both to witnesses and documents a party intends to use and also to witnesses and to documents the party intends to use ifin the language of Rule 26(a)(3)the need arises. A party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use. The obligation to disclose information the party may use connects directly to the exclusion sanction of Rule 37(c)(1). Because the disclosure obligation is limited to material that the party may use, it is no longer tied to particularized allegations in the pleadings. Subdivision (e)(1), which is unchanged, requires supplementation if information later acquired would have been subject to the disclosure requirement. As case preparation continues, a party must supplement its disclosures when it determines that it may use a witness or document that it did not previously intend to use. The disclosure obligation applies to claims and defenses, and therefore requires a party to disclose information it may use to support its denial or rebuttal of the allegations, claim, or defense of another party. It thereby bolsters the requirements of Rule 11(b)(4), which authorizes denials warranted on the evidence, and disclosure should include the identity of any witness or document that the disclosing party may use to support such denials. Subdivision (a)(3) presently excuses pretrial disclosure of information solely for impeachment. Impeachment information is similarly excluded from the initial disclosure requirement. Subdivisions (a)(1)(C) and (D) are not changed. Should a case be exempted from initial disclosure by Rule 26(a)(1)(E) or by agreement or order, the insurance information described by subparagraph (D) should be subject to discovery, as it would have been under the principles of former Rule 26(b)(2), which was added in 1970 and deleted in 1993 as redundant in light of the new initial disclosure obligation. New subdivision (a)(1)(E) excludes eight specified categories of proceedings from initial disclosure. The objective of this listing is to identify cases in which there is likely to be little or no discovery, or in which initial disclosure appears unlikely to contribute to the effective development of the case. The list was developed after a review of the categories excluded by local rules in various districts from the operation of Rule 16(b) and the conference requirements of subdivision (f). Subdivision (a)(1)(E) refers to categories of proceedings rather than categories of actions because some might not properly be labeled actions. Case designations made by the parties or the clerks office at the time of filing do not control application of the exemptions. The descriptions in the rule are generic and are intended to be administered by the partiesand, when needed, the courtswith the flexibility needed to adapt to gradual evolution in the types of proceedings that fall within these general categories. The exclusion of an action for review on an administrative record, for example, is intended to reach a proceeding that is framed as an appeal based solely on an administrative record. The exclusion should not apply to a proceeding in a form that commonly permits admission of new evidence to supplement the record. Item (vii), excluding a proceeding ancillary to proceedings in other courts, does not refer to bankruptcy proceedings; application of the Civil Rules to bankruptcy proceedings is determined by the Bankruptcy Rules. Subdivision (a)(1)(E) is likely to exempt a substantial proportion of the cases in most districts from the initial disclosure requirement. Based on 1996 and 1997 case filing statistics, Federal Judicial Center staff estimate that, nationwide, these categories total approximately one-third of all civil filings. The categories of proceedings listed in subdivision (a)(1)(E) are also exempted from the subdivision (f) conference requirement and from the subdivision (d) moratorium on discovery. Although there is no restriction on commencement of discovery in these cases, it is not expected that this opportunity will often lead to abuse since there is likely to be little or no discovery in most such cases. Should a defendant need more time to respond to discovery requests filed at the beginning of an exempted action, it can seek relief by motion under Rule 26(c) if the plaintiff is unwilling to defer the due date by agreement. Subdivision (a)(1)(E)s enumeration of exempt categories is exclusive. Although a case-specific order can alter or excuse initial disclosure, local rules or standing orders that purport to create general exemptions are invalid. See The time for initial disclosure is extended to 14 days after the subdivision (f) conference unless the court orders otherwise. This change is integrated with corresponding changes requiring that the subdivision (f) conference be held 21 days before the Rule 16(b) scheduling conference or scheduling order, and that the report on the subdivision (f) conference be submitted to the court 14 days after the meeting. These changes provide a more orderly opportunity for the parties to review the disclosures, and for the court to consider the report. In many instances, the subdivision (f) conference and the effective preparation of the case would benefit from disclosure before the conference, and earlier disclosure is encouraged. The presumptive disclosure date does not apply if a party objects to initial disclosure during the subdivision (f) conference and states its objection in the subdivision (f) discovery plan. The right to object to initial disclosure is not intended to afford parties an opportunity to opt out of disclosure unilaterally. It does provide an opportunity for an objecting party to present to the court its position that disclosure would be inappropriate in the circumstances of the action. Making the objection permits the objecting party to present the question to the judge before any party is required to make disclosure. The court must then rule on the objection and determine what disclosuresif anyshould be made. Ordinarily, this determination would be included in the Rule 16(b) scheduling order, but the court could handle the matter in a different fashion. Even when circumstances warrant suspending some disclosure obligations, otherssuch as the damages and insurance information called for by subdivisions (a)(1)(C) and (D)may continue to be appropriate. The presumptive disclosure date is also inapplicable to a party who is first served or otherwise joined after the subdivision (f) conference. This phrase refers to the date of service of a claim on a party in a defensive posture (such as a defendant or third-party defendant), and the date of joinder of a party added as a claimant or an intervenor. Absent court order or stipulation, a new party has 30 days in which to make its initial disclosures. But it is expected that later-added parties will ordinarily be treated the same as the original parties when the original parties have stipulated to forgo initial disclosure, or the court has ordered disclosure in a modified form. Subdivision (a)(3) Subdivision (a)(4) Shall is replaced by must under the program to conform amended rules to current style conventions when there is no ambiguity. Subdivision (b)(1) Discovery and Disclosure Practice, supra The amendments proposed for subdivision (b)(1) include one element of these earlier proposals but also differ from these proposals in significant ways. The similarity is that the amendments describe the scope of party-controlled discovery in terms of matter relevant to the claim or defense of any party. The court, however, retains authority to order discovery of any matter relevant to the subject matter involved in the action for good cause. The amendment is designed to involve the court more actively in regulating the breadth of sweeping or contentious discovery. The Committee has been informed repeatedly by lawyers that involvement of the court in managing discovery is an important method of controlling problems of inappropriately broad discovery. Increasing the availability of judicial officers to resolve discovery disputes and increasing court management of discovery were both strongly endorsed by the attorneys surveyed by the Federal Judicial Center. See Discovery and Disclosure Practice, supra The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action. The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the revised standard. Information about organizational arrangements or filing systems of a party could be discoverable if likely to yield or lead to the discovery of admissible information. Similarly, information that could be used to impeach a likely witness, although not otherwise relevant to the claims or defenses, might be properly discoverable. In each instance, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action. The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings. In general, it is hoped that reasonable lawyers can cooperate to manage discovery without the need for judicial intervention. When judicial intervention is invoked, the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested. The amendments also modify the provision regarding discovery of information not admissible in evidence. As added in 1946, this sentence was designed to make clear that otherwise relevant material could not be withheld because it was hearsay or otherwise inadmissible. The Committee was concerned that the reasonably calculated to lead to the discovery of admissible evidence standard set forth in this sentence might swallow any other limitation on the scope of discovery. Accordingly, this sentence has been amended to clarify that information must be relevant to be discoverable, even though inadmissible, and that discovery of such material is permitted if reasonably calculated to lead to the discovery of admissible evidence. As used here, relevant means within the scope of discovery as defined in this subdivision, and it would include information relevant to the subject matter involved in the action if the court has ordered discovery to that limit based on a showing of good cause. Finally, a sentence has been added calling attention to the limitations of subdivision (b)(2)(i), (ii), and (iii). These limitations apply to discovery that is otherwise within the scope of subdivision (b)(1). The Committee has been told repeatedly that courts have not implemented these limitations with the vigor that was contemplated. See Federal Practice & Procedure Cf. Crawford-El v. Britton Subdivision (b)(2) Subdivision (d) Subdivision (f) The rule is amended to require only a conference of the parties, rather than a meeting. There are important benefits to face-to-face discussion of the topics to be covered in the conference, and those benefits may be lost if other means of conferring were routinely used when face-to-face meetings would not impose burdens. Nevertheless, geographic conditions in some districts may exact costs far out of proportion to these benefits. The amendment allows the court by case-specific order to require a face-to-face meeting, but standing orders so requiring are not authorized. As noted concerning the amendments to subdivision (a)(1), the time for the conference has been changed to at least 21 days before the Rule 16 scheduling conference, and the time for the report is changed to no more than 14 days after the Rule 26(f) conference. This should ensure that the court will have the report well in advance of the scheduling conference or the entry of the scheduling order. Since Rule 16 was amended in 1983 to mandate some case management activities in all courts, it has included deadlines for completing these tasks to ensure that all courts do so within a reasonable time. Rule 26(f) was fit into this scheme when it was adopted in 1993. It was never intended, however, that the national requirements that certain activities be completed by a certain time should delay case management in districts that move much faster than the national rules direct, and the rule is therefore amended to permit such a court to adopt a local rule that shortens the period specified for the completion of these tasks. Shall is replaced by must, does, or an active verb under the program to conform amended rules to current style conventions when there is no ambiguity. GAP Report The Advisory Committee recommends changing the rule to authorize the court to expand discovery to any matternot informationrelevant to the subject matter involved in the action. In addition, it recommends additional clarifying material in the Committee Note about the impact of the change on some commonly disputed discovery topics, the relationship between cost-bearing under Rule 26(b)(2) and expansion of the scope of discovery on a showing of good cause, and the meaning of relevant in the revision to the last sentence of current subdivision (b)(1). In addition, some minor clarifications of language changes have been proposed for the Committee Note. The Advisory Committee recommends adding a sentence to the published amendments to Rule 26(f) authorizing local rules shortening the time between the attorney conference and the courts action under Rule 16(b), and addition to the Committee Note of explanatory material about this change to the rule. This addition can be made without republication in response to public comments. Committee Notes on Rules2006 Amendment Subdivision (a) Changes Made After Publication and Comment [ Subdivision (a)(1)(E) Subdivision (b)(2) It is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information. Information systems are designed to provide ready access to information used in regular ongoing activities. They also may be designed so as to provide ready access to information that is not regularly used. But a system may retain information on sources that are accessible only by incurring substantial burdens or costs. Subparagraph (B) is added to regulate discovery from such sources. Under this rule, a responding party should produce electronically stored information that is relevant, not privileged, and reasonably accessible, subject to the (b)(2)(C) limitations that apply to all discovery. The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources. A partys identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence. Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case. It is often useful for the parties to discuss this issue early in discovery. The volume ofand the ability to searchmuch electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties discovery needs. In many circumstances the requesting party should obtain and evaluate the information from such sources before insisting that the responding party search and produce information contained on sources that are not reasonably accessible. If the requesting party continues to seek discovery of information from sources identified as not reasonably accessible, the parties should discuss the burdens and costs of accessing and retrieving the information, the needs that may establish good cause for requiring all or part of the requested discovery even if the information sought is not reasonably accessible, and conditions on obtaining and producing the information that may be appropriate. If the parties cannot agree whether, or on what terms, sources identified as not reasonably accessible should be searched and discoverable information produced, the issue may be raised either by a motion to compel discovery or by a motion for a protective order. The parties must confer before bringing either motion. If the parties do not resolve the issue and the court must decide, the responding party must show that the identified sources of information are not reasonably accessible because of undue burden or cost. The requesting party may need discovery to test this assertion. Such discovery might take the form of requiring the responding party to conduct a sampling of information contained on the sources identified as not reasonably accessible; allowing some form of inspection of such sources; or taking depositions of witnesses knowledgeable about the responding partys information systems. Once it is shown that a source of electronically stored information is not reasonably accessible, the requesting party may still obtain discovery by showing good cause, considering the limitations of Rule 26(b)(2)(C) that balance the costs and potential benefits of discovery. The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case. Appropriate considerations may include: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties resources. The responding party has the burden as to one aspect of the inquirywhether the identified sources are not reasonably accessible in light of the burdens and costs required to search for, retrieve, and produce whatever responsive information may be found. The requesting party has the burden of showing that its need for the discovery outweighs the burdens and costs of locating, retrieving, and producing the information. In some cases, the court will be able to determine whether the identified sources are not reasonably accessible and whether the requesting party has shown good cause for some or all of the discovery, consistent with the limitations of Rule 26(b)(2)(C), through a single proceeding or presentation. The good-cause determination, however, may be complicated because the court and parties may know little about what information the sources identified as not reasonably accessible might contain, whether it is relevant, or how valuable it may be to the litigation. In such cases, the parties may need some focused discovery, which may include sampling of the sources, to learn more about what burdens and costs are involved in accessing the information, what the information consists of, and how valuable it is for the litigation in light of information that can be obtained by exhausting other opportunities for discovery. The good-cause inquiry and consideration of the Rule 26(b)(2)(C) limitations are coupled with the authority to set conditions for discovery. The conditions may take the form of limits on the amount, type, or sources of information required to be accessed and produced. The conditions may also include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible. A requesting partys willingness to share or bear the access costs may be weighed by the court in determining whether there is good cause. But the producing partys burdens in reviewing the information for relevance and privilege may weigh against permitting the requested discovery. The limitations of Rule 26(b)(2)(C) continue to apply to all discovery of electronically stored information, including that stored on reasonably accessible electronic sources. Changes Made after Publication and Comment The published proposal referred only to a motion by the requesting party to compel discovery. The rule text has been changed to recognize that the responding party may wish to determine its search and potential preservation obligations by moving for a protective order. The provision that the court may for good cause order discovery from sources that are not reasonably accessible is expanded in two ways. It now states specifically that the requesting party is the one who must show good cause, and it refers to consideration of the limitations on discovery set out in present Rule 26(b)(2)(i), (ii), and (iii). The published proposal was added at the end of present Rule 26(b)(2). It has been relocated to become a new subparagraph (B), allocating present Rule 26(b)(2) to new subparagraphs (A) and (C). The Committee Note was changed to reflect the rule text revisions. It also was shortened. The shortening was accomplished in part by deleting references to problems that are likely to become antique as technology continues to evolve, and in part by deleting passages that were at a level of detail better suited for a practice manual than a Committee Note. The changes from the published proposed amendment to Rule 26(b)(2) are set out below. [Omitted] Subdivision (b)(5) Rule 26(b)(5)(B) does not address whether the privilege or protection that is asserted after production was waived by the production. The courts have developed principles to determine whether, and under what circumstances, waiver results from inadvertent production of privileged or protected information. Rule 26(b)(5)(B) provides a procedure for presenting and addressing these issues. Rule 26(b)(5)(B) works in tandem with Rule 26(f), which is amended to direct the parties to discuss privilege issues in preparing their discovery plan, and which, with amended Rule 16(b), allows the parties to ask the court to include in an order any agreements the parties reach regarding issues of privilege or trial-preparation material protection. Agreements reached under Rule 26(f)(4) and orders including such agreements entered under Rule 16(b)(6) may be considered when a court determines whether a waiver has occurred. Such agreements and orders ordinarily control if they adopt procedures different from those in Rule 26(b)(5)(B). A party asserting a claim of privilege or protection after production must give notice to the receiving party. That notice should be in writing unless the circumstances preclude it. Such circumstances could include the assertion of the claim during a deposition. The notice should be as specific as possible in identifying the information and stating the basis for the claim. Because the receiving party must decide whether to challenge the claim and may sequester the information and submit it to the court for a ruling on whether the claimed privilege or protection applies and whether it has been waived, the notice should be sufficiently detailed so as to enable the receiving party and the court to understand the basis for the claim and to determine whether waiver has occurred. Courts will continue to examine whether a claim of privilege or protection was made at a reasonable time when delay is part of the waiver determination under the governing law. After receiving notice, each party that received the information must promptly return, sequester, or destroy the information and any copies it has. The option of sequestering or destroying the information is included in part because the receiving party may have incorporated the information in protected trial-preparation materials. No receiving party may use or disclose the information pending resolution of the privilege claim. The receiving party may present to the court the questions whether the information is privileged or protected as trial-preparation material, and whether the privilege or protection has been waived. If it does so, it must provide the court with the grounds for the privilege or protection specified in the producing partys notice, and serve all parties. In presenting the question, the party may use the content of the information only to the extent permitted by the applicable law of privilege, protection for trial-preparation material, and professional responsibility. If a party disclosed the information to nonparties before receiving notice of a claim of privilege or protection as trial-preparation material, it must take reasonable steps to retrieve the information and to return it, sequester it until the claim is resolved, or destroy it. Whether the information is returned or not, the producing party must preserve the information pending the courts ruling on whether the claim of privilege or of protection is properly asserted and whether it was waived. As with claims made under Rule 26(b)(5)(A), there may be no ruling if the other parties do not contest the claim. Changes Made After Publication and Comment The published proposal referred to production without intending to waive a claim of privilege. This reference to intent was deleted because many courts include intent in the factors that determine whether production waives privilege. The published proposal required that the producing party give notice within a reasonable time. The time requirement was deleted because it seemed to implicate the question whether production effected a waiver, a question not addressed by the rule, and also because a receiving party cannot practicably ignore a notice that it believes was unreasonably delayed. The notice procedure was further changed to require that the producing party state the basis for the claim. Two statements in the published Note have been brought into the rule text. The first provides that the receiving party may not use or disclose the information until the claim is resolved. The second provides that if the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. 1 1 The rule text was expanded by adding a provision that the receiving party may promptly present the information to the court under seal for a determination of the claim. The published proposal provided that the producing party must comply with Rule 26(b)(5)(A) after making the claim. This provision was deleted as unnecessary. Changes are made in the Committee Note to reflect the changes in the rule text. The changes from the published rule are shown below. [Omitted] Subdivision (f) When a case involves discovery of electronically stored information, the issues to be addressed during the Rule 26(f) conference depend on the nature and extent of the contemplated discovery and of the parties information systems. It may be important for the parties to discuss those systems, and accordingly important for counsel to become familiar with those systems before the conference. With that information, the parties can develop a discovery plan that takes into account the capabilities of their computer systems. In appropriate cases identification of, and early discovery from, individuals with special knowledge of a partys computer systems may be helpful. The particular issues regarding electronically stored information that deserve attention during the discovery planning stage depend on the specifics of the given case. See Manual for Complex Litigation See Rule 26(f) is also amended to direct the parties to discuss any issues regarding preservation of discoverable information during their conference as they develop a discovery plan. This provision applies to all sorts of discoverable information, but can be particularly important with regard to electronically stored information. The volume and dynamic nature of electronically stored information may complicate preservation obligations. The ordinary operation of computers involves both the automatic creation and the automatic deletion or overwriting of certain information. Failure to address preservation issues early in the litigation increases uncertainty and raises a risk of disputes. The parties discussion should pay particular attention to the balance between the competing needs to preserve relevant evidence and to continue routine operations critical to ongoing activities. Complete or broad cessation of a partys routine computer operations could paralyze the partys activities. Cf. Manual for Complex Litigation The requirement that the parties discuss preservation does not imply that courts should routinely enter preservation orders. A preservation order entered over objections should be narrowly tailored. Ex parte preservation orders should issue only in exceptional circumstances. Rule 26(f) is also amended to provide that the parties should discuss any issues relating to assertions of privilege or of protection as trial-preparation materials, including whether the parties can facilitate discovery by agreeing on procedures for asserting claims of privilege or protection after production and whether to ask the court to enter an order that includes any agreement the parties reach. The Committee has repeatedly been advised about the discovery difficulties that can result from efforts to guard against waiver of privilege and work-product protection. Frequently parties find it necessary to spend large amounts of time reviewing materials requested through discovery to avoid waiving privilege. These efforts are necessary because materials subject to a claim of privilege or protection are often difficult to identify. A failure to withhold even one such item may result in an argument that there has been a waiver of privilege as to all other privileged materials on that subject matter. Efforts to avoid the risk of waiver can impose substantial costs on the party producing the material and the time required for the privilege review can substantially delay access for the party seeking discovery. These problems often become more acute when discovery of electronically stored information is sought. The volume of such data, and the informality that attends use of e-mail and some other types of electronically stored information, may make privilege determinations more difficult, and privilege review correspondingly more expensive and time consuming. Other aspects of electronically stored information pose particular difficulties for privilege review. For example, production may be sought of information automatically included in electronic files but not apparent to the creator or to readers. Computer programs may retain draft language, editorial comments, and other deleted matter (sometimes referred to as embedded data or embedded edits) in an electronic file but not make them apparent to the reader. Information describing the history, tracking, or management of an electronic file (sometimes called metadata) is usually not apparent to the reader viewing a hard copy or a screen image. Whether this information should be produced may be among the topics discussed in the Rule 26(f) conference. If it is, it may need to be reviewed to ensure that no privileged information is included, further complicating the task of privilege review. Parties may attempt to minimize these costs and delays by agreeing to protocols that minimize the risk of waiver. They may agree that the responding party will provide certain requested materials for initial examination without waiving any privilege or protectionsometimes known as a quick peek. The requesting party then designates the documents it wishes to have actually produced. This designation is the Rule 34 request. The responding party then responds in the usual course, screening only those documents actually requested for formal production and asserting privilege claims as provided in Rule 26(b)(5)(A). On other occasions, parties enter agreementssometimes called clawback agreementsthat production without intent to waive privilege or protection should not be a waiver so long as the responding party identifies the documents mistakenly produced, and that the documents should be returned under those circumstances. Other voluntary arrangements may be appropriate depending on the circumstances of each litigation. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial-preparation material. Although these agreements may not be appropriate for all cases, in certain cases they can facilitate prompt and economical discovery by reducing delay before the discovering party obtains access to documents, and by reducing the cost and burden of review by the producing party. A case-management or other order including such agreements may further facilitate the discovery process. Form 35 is amended to include a report to the court about any agreement regarding protections against inadvertent forfeiture or waiver of privilege or protection that the parties have reached, and Rule 16(b) is amended to recognize that the court may include such an agreement in a case- management or other order. If the parties agree to entry of such an order, their proposal should be included in the report to the court. Rule 26(b)(5)(B) is added to establish a parallel procedure to assert privilege or protection as trial-preparation material after production, leaving the question of waiver to later determination by the court. Changes Made After Publication and Comment The published Rule 26(f)(4) proposal described the parties views and proposals concerning whether, on their agreement, the court should enter an order protecting the right to assert privilege after production. This has been revised to refer to the parties views and proposals concerning any issues relating to claims of privilege, includingif the parties agree on a procedure to assert such claims after productionwhether to ask the court to include their agreement in an order. As with Rule 16(b)(6), this change was made to avoid any implications as to the scope of the protection that may be afforded by court adoption of the parties agreement. Rule 26(f)(4) also was expanded to include trial-preparation materials. The Committee Note was revised to reflect the changes in the rule text. The changes from the published rule are shown below. [Omitted] Committee Notes on Rules2007 Amendment The language of Rule 26 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 26(a)(5) served as an index of the discovery methods provided by later rules. It was deleted as redundant. Deletion does not affect the right to pursue discovery in addition to disclosure. Former Rule 26(b)(1) began with a general statement of the scope of discovery that appeared to function as a preface to each of the five numbered paragraphs that followed. This preface has been shifted to the text of paragraph (1) because it does not accurately reflect the limits embodied in paragraphs (2), (3), or (4), and because paragraph (5) does not address the scope of discovery. The reference to discovery of books in former Rule 26(b)(1) was deleted to achieve consistent expression throughout the discovery rules. Books remain a proper subject of discovery. Amended Rule 26(b)(3) states that a party may obtain a copy of the partys own previous statement on request. Former Rule 26(b)(3) expressly made the request procedure available to a nonparty witness, but did not describe the procedure to be used by a party. This apparent gap is closed by adopting the request procedure, which ensures that a party need not invoke Rule 34 to obtain a copy of the partys own statement. Rule 26(e) stated the duty to supplement or correct a disclosure or discovery response to include information thereafter acquired. This apparent limit is not reflected in practice; parties recognize the duty to supplement or correct by providing information that was not originally provided although it was available at the time of the initial disclosure or response. These words are deleted to reflect the actual meaning of the present rule. Former Rule 26(e) used different phrases to describe the time to supplement or correct a disclosure or discovery response. Disclosures were to be supplemented at appropriate intervals. A prior discovery response must be seasonably * * * amend[ed]. The fine distinction between these phrases has not been observed in practice. Amended Rule 26(e)(1)(A) uses the same phrase for disclosures and discovery responses. The party must supplement or correct in a timely manner. Former Rule 26(g)(1) did not call for striking an unsigned disclosure. The omission was an obvious drafting oversight. Amended Rule 26(g)(2) includes disclosures in the list of matters that the court must strike unless a signature is provided promptly * * * after being called to the attorneys or partys attention. Former Rule 26(b)(2)(A) referred to a good faith argument to extend existing law. Amended Rule 26(b)(1)(B)(i) changes this reference to a nonfrivolous argument to achieve consistency with Rule 11(b)(2). As with the Rule 11 signature on a pleading, written motion, or other paper, disclosure and discovery signatures should include not only a postal address but also a telephone number and electronic-mail address. A signer who lacks one or more of those addresses need not supply a nonexistent item. Rule 11(b)(2) recognizes that it is legitimate to argue for establishing new law. An argument to establish new law is equally legitimate in conducting discovery. Changes Made After Publication and Comment Committee Notes on Rules2010 Amendment Rule 26. In 1993, Rule 26(b)(4)(A) was revised to authorize expert depositions and Rule 26(a)(2) was added to provide disclosure, includingfor many expertsan extensive report. Many courts read the disclosure provision to authorize discovery of all communications between counsel and expert witnesses and all draft reports. The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects. Costs have risen. Attorneys may employ two sets of expertsone for purposes of consultation and another to testify at trialbecause disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses. At the same time, attorneys often feel compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication, and experts adopt strategies that protect against discovery but also interfere with their work. Subdivision (a)(2)(B). The refocus of disclosure on facts or data is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel. At the same time, the intention is that facts or data be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. The disclosure obligation extends to any facts or data considered by the expert in forming the opinions to be expressed, not only those relied upon by the expert. Subdivision (a)(2)(C). This amendment resolves a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement. An (a)(2)(B) report is required only from an expert described in (a)(2)(B). A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C). The (a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the witness will present. Subdivision (a)(2)(D). Subdivision (b)(4). see Rule 26(b)(4)(C) is added to provide work-product protection for attorney-expert communications regardless of the form of the communications, whether oral, written, electronic, or otherwise. The addition of Rule 26(b)(4)(C) is designed to protect counsels work product and ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery. The protection is limited to communications between an expert witness required to provide a report under Rule 26(a)(2)(B) and the attorney for the party on whose behalf the witness will be testifying, including any preliminary expert opinions. Protected communications include those between the partys attorney and assistants of the expert witness. The rule does not itself protect communications between counsel and other expert witnesses, such as those for whom disclosure is required under Rule 26(a)(2)(C). The rule does not exclude protection under other doctrines, such as privilege or independent development of the work-product doctrine. The most frequent method for discovering the work of expert witnesses is by deposition, but Rules 26(b)(4)(B) and (C) apply to all forms of discovery. Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions. For example, the experts testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule. Similarly, inquiry about communications the expert had with anyone other than the partys counsel about the opinions expressed is unaffected by the rule. Counsel are also free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed. These discovery changes therefore do not affect the gatekeeping functions called for by Daubert v. Merrell Dow Pharmaceuticals, Inc. The protection for communications between the retained expert and the partys attorney should be applied in a realistic manner, and often would not be limited to communications with a single lawyer or a single law firm. For example, a party may be involved in a number of suits about a given product or service, and may retain a particular expert witness to testify on that partys behalf in several of the cases. In such a situation, the protection applies to communications between the expert witness and the attorneys representing the party in any of those cases. Similarly, communications with in-house counsel for the party would often be regarded as protected even if the in-house attorney is not counsel of record in the action. Other situations may also justify a pragmatic application of the partys attorney concept. Although attorney-expert communications are generally protected by Rule 26(b)(4)(C), the protection does not apply to the extent the lawyer and the expert communicate about matters that fall within three exceptions. But the discovery authorized by the exceptions does not extend beyond those specific topics. Lawyer-expert communications may cover many topics and, even when the excepted topics are included among those involved in a given communication, the protection applies to all other aspects of the communication beyond the excepted topics. First, under Rule 26(b)(4)(C)(i) attorney-expert communications regarding compensation for the experts study or testimony may be the subject of discovery. In some cases, this discovery may go beyond the disclosure requirement in Rule 26(a)(2)(B)(vi). It is not limited to compensation for work forming the opinions to be expressed, but extends to all compensation for the study and testimony provided in relation to the action. Any communications about additional benefits to the expert, such as further work in the event of a successful result in the present case, would be included. This exception includes compensation for work done by a person or organization associated with the expert. The objective is to permit full inquiry into such potential sources of bias. Second, under Rule 26(b)(4)(C)(ii) discovery is permitted to identify facts or data the partys attorney provided to the expert and that the expert considered in forming the opinions to be expressed. The exception applies only to communications identifying the facts or data provided by counsel; further communications about the potential relevance of the facts or data are protected. Third, under Rule 26(b)(4)(C)(iii) discovery regarding attorney-expert communications is permitted to identify any assumptions that counsel provided to the expert and that the expert relied upon in forming the opinions to be expressed. For example, the partys attorney may tell the expert to assume the truth of certain testimony or evidence, or the correctness of another experts conclusions. This exception is limited to those assumptions that the expert actually did rely on in forming the opinions to be expressed. More general attorney-expert discussions about hypotheticals, or exploring possibilities based on hypothetical facts, are outside this exception. Under the amended rule, discovery regarding attorney-expert communications on subjects outside the three exceptions in Rule 26(b)(4)(C), or regarding draft expert reports or disclosures, is permitted only in limited circumstances and by court order. A party seeking such discovery must make the showing specified in Rule 26(b)(3)(A)(ii)that the party has a substantial need for the discovery and cannot obtain the substantial equivalent without undue hardship. It will be rare for a party to be able to make such a showing given the broad disclosure and discovery otherwise allowed regarding the experts testimony. A partys failure to provide required disclosure or discovery does not show the need and hardship required by Rule 26(b)(3)(A); remedies are provided by Rule 37. In the rare case in which a party does make this showing, the court must protect against disclosure of the attorneys mental impressions, conclusions, opinions, or legal theories under Rule 26(b)(3)(B). But this protection does not extend to the experts own development of the opinions to be presented; those are subject to probing in deposition or at trial. Former Rules 26(b)(4)(B) and (C) have been renumbered (D) and (E), and a slight revision has been made in (E) to take account of the renumbering of former (B). Changes Made After Publication and Comment. Committee Notes on Rules2015 Amendment Rule 26(b)(1) is changed in several ways. Information is discoverable under revised Rule 26(b)(1) if it is relevant to any partys claim or defense and is proportional to the needs of the case. The considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one addition. Most of what now appears in Rule 26(b)(2)(C)(iii) was first adopted in 1983. The 1983 provision was explicitly adopted as part of the scope of discovery defined by Rule 26(b)(1). Rule 26(b)(1) directed the court to limit the frequency or extent of use of discovery if it determined that the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties resources, and the importance of the issues at stake in the litigation. At the same time, Rule 26(g) was added. Rule 26(g) provided that signing a discovery request, response, or objection certified that the request, response, or objection was not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. The parties thus shared the responsibility to honor these limits on the scope of discovery. The 1983 Committee Note stated that the new provisions were added to deal with the problem of over-discovery. The objective is to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry. The new sentence is intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse. The grounds mentioned in the amended rule for limiting discovery reflect the existing practice of many courts in issuing protective orders under Rule 26(c). ... On the whole, however, district judges have been reluctant to limit the use of the discovery devices. The clear focus of the 1983 provisions may have been softened, although inadvertently, by the amendments made in 1993. The 1993 Committee Note explained: [F]ormer paragraph (b)(1) [was] subdivided into two paragraphs for ease of reference and to avoid renumbering of paragraphs (3) and (4). Subdividing the paragraphs, however, was done in a way that could be read to separate the proportionality provisions as limitations, no longer an integral part of the (b)(1) scope provisions. That appearance was immediately offset by the next statement in the Note: Textual changes are then made in new paragraph (2) to enable the court to keep tighter rein on the extent of discovery. The 1993 amendments added two factors to the considerations that bear on limiting discovery: whether the burden or expense of the proposed discovery outweighs its likely benefit, and the importance of the proposed discovery in resolving the issues. Addressing these and other limitations added by the 1993 discovery amendments, the Committee Note stated that [t]he revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery. ... The relationship between Rule 26(b)(1) and (2) was further addressed by an amendment made in 2000 that added a new sentence at the end of (b)(1): All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii) [now Rule 26(b)(2)(C)]. The Committee Note recognized that [t]hese limitations apply to discovery that is otherwise within the scope of subdivision (b)(1). It explained that the Committee had been told repeatedly that courts were not using these limitations as originally intended. This otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery. The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections. Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes. The parties may begin discovery without a full appreciation of the factors that bear on proportionality. A party requesting discovery, for example, may have little information about the burden or expense of responding. A party requested to provide discovery may have little information about the importance of the discovery in resolving the issues as understood by the requesting party. Many of these uncertainties should be addressed and reduced in the parties Rule 26(f) conference and in scheduling and pretrial conferences with the court. But if the parties continue to disagree, the discovery dispute could be brought before the court and the parties responsibilities would remain as they have been since 1983. A party claiming undue burden or expense ordinarily has far better informationperhaps the only informationwith respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The courts responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery. The direction to consider the parties relative access to relevant information adds new text to provide explicit focus on considerations already implicit in present Rule 26(b)(2)(C)(iii). Some cases involve what often is called information asymmetry. One partyoften an individual plaintiffmay have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so. Restoring proportionality as an express component of the scope of discovery warrants repetition of parts of the 1983 and 1993 Committee Notes that must not be lost from sight. The 1983 Committee Note explained that [t]he rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis. The 1993 Committee Note further observed that [t]he information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay or oppression. What seemed an explosion in 1993 has been exacerbated by the advent of e-discovery. The present amendment again reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management. It is expected that discovery will be effectively managed by the parties in many cases. But there will be important occasions for judicial management, both when the parties are legitimately unable to resolve important differences and when the parties fall short of effective, cooperative management on their own. It also is important to repeat the caution that the monetary stakes are only one factor, to be balanced against other factors. The 1983 Committee Note recognized the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved. Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values. So too, consideration of the parties resources does not foreclose discovery requests addressed to an impecunious party, nor justify unlimited discovery requests addressed to a wealthy party. The 1983 Committee Note cautioned that [t]he court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent. The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available. A portion of present Rule 26(b)(1) is omitted from the proposed revision. After allowing discovery of any matter relevant to any partys claim or defense, the present rule adds: 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. Discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples. The discovery identified in these examples should still be permitted under the revised rule when relevant and proportional to the needs of the case. Framing intelligent requests for electronically stored information, for example, may require detailed information about another partys information systems and other information resources. The amendment deletes the former provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. The Committee has been informed that this language is rarely invoked. Proportional discovery relevant to any partys claim or defense suffices, given a proper understanding of what is relevant to a claim or defense. The distinction between matter relevant to a claim or defense and matter relevant to the subject matter was introduced in 2000. The 2000 Note offered three examples of information that, suitably focused, would be relevant to the parties claims or defenses. The examples were other incidents of the same type, or involving the same product; information about organizational arrangements or filing systems; and information that could be used to impeach a likely witness. Such discovery is not foreclosed by the amendments. Discovery that is relevant to the parties claims or defenses may also support amendment of the pleadings to add a new claim or defense that affects the scope of discovery. The former provision for discovery of relevant but inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the reasonably calculated phrase to define the scope of discovery might swallow any other limitation on the scope of discovery. The 2000 amendments sought to prevent such misuse by adding the word Relevant at the beginning of the sentence, making clear that  relevant means within the scope of discovery as defined in this subdivision . ... The reasonably calculated phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that Information within this scope of discovery need not be admissible in evidence to be discoverable. Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery. Rule 26(b)(2)(C)(iii) is amended to reflect the transfer of the considerations that bear on proportionality to Rule 26(b)(1). The court still must limit the frequency or extent of proposed discovery, on motion or on its own, if it is outside the scope permitted by Rule 26(b)(1). Rule 26(c)(1)(B) is amended to include an express recognition of protective orders that allocate expenses for disclosure or discovery. Authority to enter such orders is included in the present rule, and courts already exercise this authority. Explicit recognition will forestall the temptation some parties may feel to contest this authority. Recognizing the authority does not imply that cost-shifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding. Rule 26(d)(2) is added to allow a party to deliver Rule 34 requests to another party more than 21 days after that party has been served even though the parties have not yet had a required Rule 26(f) conference. Delivery may be made by any party to the party that has been served, and by that party to any plaintiff and any other party that has been served. Delivery does not count as service; the requests are considered to be served at the first Rule 26(f) conference. Under Rule 34(b)(2)(A) the time to respond runs from service. This relaxation of the discovery moratorium is designed to facilitate focused discussion during the Rule 26(f) conference. Discussion at the conference may produce changes in the requests. The opportunity for advance scrutiny of requests delivered before the Rule 26(f) conference should not affect a decision whether to allow additional time to respond. Rule 26(d)(3) is renumbered and amended to recognize that the parties may stipulate to case-specific sequences of discovery. Rule 26(f)(3) is amended in parallel with Rule 16(b)(3) to add two items to the discovery planissues about preserving electronically stored information and court orders under Evidence Rule 502.  References in Text The Federal Rules of Evidence, referred to in subdiv. (a)(2)(A), (C)(i), (3)(B), are set out in this Appendix. Rule 27. Depositions to Perpetuate Testimony (a) Before an Action Is Filed. (1)  Petition. (A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioners interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each deponent. (2)  Notice and Service. (3)  Order and Examination. (4)  Using the Deposition. (b) Pending Appeal. (1)  In General. (2)  Motion. (A) the name, address, and expected substance of the testimony of each deponent; and (B) the reasons for perpetuating the testimony. (3)  Court Order. (c) Perpetuation by an Action. This rule does not limit a courts power to entertain an action to perpetuate testimony. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Mar. 1, 1971 July 1, 1971 Mar. 2, 1987 Aug. 1, 1987 Apr. 25, 2005 Dec. 1, 2005 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Arizona v. California Todd Engineering Dry Dock and Repair Co. v. United States Hall v. Stout Note to Subdivision (b) Richter v. Union Trust Co Note to Subdivision (c) dedimus potestatem in perpetuam Notes of Advisory Committee on Rules1946 Amendment Since the second sentence in subdivision (a)(3) refers only to depositions, it is arguable that Rules 34 and 35 are inapplicable in proceedings to perpetuate testimony. The new matter [in subdivisions (a)(3) and (b)] clarifies. A conforming change is also made in subdivision (b). Notes of Advisory Committee on Rules1948 Amendment The only changes are in nomenclature to conform to the official designation of a district court in Title 28, U.S.C.,  132(a). Notes of Advisory Committee on Rules1971 Amendment The reference intended in this subdivision is to the rule governing the use of depositions in court proceedings. Formerly Rule 26(d), that rule is now Rule 32(a). The subdivision is amended accordingly. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2005 Amendment The outdated cross-reference to former Rule 4(d) is corrected to incorporate all Rule 4 methods of service. Former Rule 4(d) has been allocated to many different subdivisions of Rule 4. Former Rule 4(d) did not cover all categories of defendants or modes of service, and present Rule 4 reaches further than all of former Rule 4. But there is no reason to distinguish between the different categories of defendants and modes of service encompassed by Rule 4. Rule 4 service provides effective notice. Notice by such means should be provided to any expected adverse party that comes within Rule 4. Other changes are made to conform Rule 27(a)(2) to current style conventions. Changes Made After Publication and Comment Committee Notes on Rules2007 Amendment The language of Rule 27 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment The time set in the former rule at 20 days has been revised to 21 days. See the Note to Rule 6. Rule 28. Persons Before Whom Depositions May Be Taken (a) Within the United States. (1)  In General. (A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or (B) a person appointed by the court where the action is pending to administer oaths and take testimony. (2)  Definition of Officer. (b) In a Foreign Country. (1)  In General. (A) under an applicable treaty or convention; (B) under a letter of request, whether or not captioned a letter rogatory; (C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or (D) before a person commissioned by the court to administer any necessary oath and take testimony. (2)  Issuing a Letter of Request or a Commission. (A) on appropriate terms after an application and notice of it; and (B) without a showing that taking the deposition in another manner is impracticable or inconvenient. (3)  Form of a Request, Notice, or Commission. (4)  Letter of RequestAdmitting Evidence. (c) Disqualification. A deposition must not be taken before a person who is any partys relative, employee, or attorney; who is related to or employed by any partys attorney; or who is financially interested in the action. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Apr. 29, 1980 Aug. 1, 1980 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 1, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 In effect this rule is substantially the same as U.S.C., Title 28, [former]  639 (Depositions de bene esse; Notes of Advisory Committee on Rules1946 Amendment The added language [in subdivision (a)] provides for the situation, occasionally arising, when depositions must be taken in an isolated place where there is no one readily available who has the power to administer oaths and take testimony according to the terms of the rule as originally stated. In addition, the amendment affords a more convenient method of securing depositions in the case where state lines intervene between the location of various witnesses otherwise rather closely grouped. The amendment insures that the person appointed shall have adequate power to perform his duties. It has been held that a person authorized to act in the premises, as, for example, a master, may take testimony outside the district of his appointment. Consolidated Fastener Co. v. Columbian Button & Fastener Co Mathieson Alkali Works v. Arnold, Hoffman & Co Notes of Advisory Committee on Rules1963 Amendment The amendment of clause (1) is designed to facilitate depositions in foreign countries by enlarging the class of persons before whom the depositions may be taken on notice. The class is no longer confined, as at present, to a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States. In a country that regards the taking of testimony by a foreign official in aid of litigation pending in a court of another country as an infringement upon its sovereignty, it will be expedient to notice depositions before officers of the country in which the examination is taken. See generally Symposium, Letters Rogatory Taking Evidence by Deposition and Letters Rogatory and Obtaining Documents in Foreign Territory Procuring Evidence Abroad International Judicial Assistance: Procedural Chaos and a Program for Reform International Aspects of Federal Civil Procedure Clause (2) of amended subdivision (b), like the corresponding provision of subdivision (a) dealing with depositions taken in the United States, makes it clear that the appointment of a person by commission in itself confers power upon him to administer any necessary oath. It has been held that a letter rogatory will not be issued unless the use of a notice or commission is shown to be impossible or impractical. See, e.g., United States v. Matles The Edmund Fanning Branyan v. Koninklijke Luchtvaart Maatschappij Ali Akber Kiachif v. Philco International Corp In executing a letter rogatory the courts of other countries may be expected to follow their customary procedure for taking testimony. See United States v. Paraffin Wax, 2255 Bags supra supra But cf. Nelson v. United States Winthrop v. Union Ins. Co cf. Uebersee Finanz-Korporation, A.G. v. Brownell Danisch v. Guardian Life Ins. Co Some foreign countries are hostile to allowing a deposition to be taken in their country, especially by notice or commission, or to lending assistance in the taking of a deposition. Thus compliance with the terms of amended subdivision (b) may not in all cases ensure completion of a deposition abroad. Examination of the law and policy of the particular foreign country in advance of attempting a deposition is therefore advisable. See 4 Moores Federal Practice Notes of Advisory Committee on Rules1980 Amendment The amendments are clarifying. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment This revision is intended to make effective use of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and of any similar treaties that the United States may enter into in the future which provide procedures for taking depositions abroad. The party taking the deposition is ordinarily obliged to conform to an applicable treaty or convention if an effective deposition can be taken by such internationally approved means, even though a verbatim transcript is not available or testimony cannot be taken under oath. For a discussion of the impact of such treaties upon the discovery process, and of the application of principles of comity upon discovery in countries not signatories to a convention, see Societe Nationale Industrielle Aerospatiale v. United States District Court The term letter of request has been substituted in the rule for the term letter rogatory because it is the primary method provided by the Hague Convention. A letter rogatory is essentially a form of letter of request. There are several other minor changes that are designed merely to carry out the intent of the other alterations. Committee Notes on Rules2007 Amendment The language of Rule 28 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 29. Stipulations About Discovery Procedure Unless the court orders otherwise, the parties may stipulate that: (a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specifiedin which event it may be used in the same way as any other deposition; and (b) other procedures governing or limiting discovery be modifiedbut a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial. (As amended Mar. 30, 1970 July 1, 1970 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1970 Amendment There is no provision for stipulations varying the procedures by which methods of discovery other than depositions are governed. It is common practice for parties to agree on such variations, and the amendment recognizes such agreements and provides a formal mechanism in the rules for giving them effect. Any stipulation varying the procedures may be superseded by court order, and stipulations extending the time for response to discovery under Rules 33, 34, and 36 require court approval. Notes of Advisory Committee on Rules1993 Amendment This rule is revised to give greater opportunity for litigants to agree upon modifications to the procedures governing discovery or to limitations upon discovery. Counsel are encouraged to agree on less expensive and time-consuming methods to obtain information, as through voluntary exchange of documents, use of interviews in lieu of depositions, etc. Likewise, when more depositions or interrogatories are needed than allowed under these rules or when more time is needed to complete a deposition than allowed under a local rule, they can, by agreeing to the additional discovery, eliminate the need for a special motion addressed to the court. Under the revised rule, the litigants ordinarily are not required to obtain the courts approval of these stipulations. By order or local rule, the court can, however, direct that its approval be obtained for particular types of stipulations; and, in any event, approval must be obtained if a stipulation to extend the 30-day period for responding to interrogatories, requests for production, or requests for admissions would interfere with dates set by the court for completing discovery, for hearing of a motion, or for trial. Committee Notes on Rules2007 Amendment The language of Rule 29 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 30. Depositions by Oral Examination (a) When a Deposition May Be Taken. (1)  Without Leave. (2)  With Leave. (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or (B) if the deponent is confined in prison. (b) Notice of the Deposition; Other Formal Requirements. (1)  Notice in General. (2)  Producing Documents. (3)  Method of Recording. (A)  Method Stated in the Notice. (B)  Additional Method. (4)  By Remote Means. (5)  Officers Duties. (A)  Before the Deposition. (i) the officers name and business address; (ii) the date, time, and place of the deposition; (iii) the deponents name; (iv) the officers administration of the oath or affirmation to the deponent; and (v) the identity of all persons present. (B)  Conducting the Deposition; Avoiding Distortion. (C)  After the Deposition. (6)  Notice or Subpoena Directed to an Organization. (c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions. (1)  Examination and Cross-Examination. (2)  Objections. (3)  Participating Through Written Questions. (d) Duration; Sanction; Motion to Terminate or Limit. (1)  Duration. (2)  Sanction. (3)  Motion to Terminate or Limit. (A)  Grounds. (B)  Order. (C)  Award of Expenses. (e) Review by the Witness; Changes. (1)  Review; Statement of Changes. (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. (2)  Changes Indicated in the Officers Certificate. (f) Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing. (1)  Certification and Delivery. (2)  Documents and Tangible Things. (A)  Originals and Copies. (i) offer copies to be marked, attached to the deposition, and then used as originalsafter giving all parties a fair opportunity to verify the copies by comparing them with the originals; or (ii) give all parties a fair opportunity to inspect and copy the originals after they are markedin which event the originals may be used as if attached to the deposition. (B)  Order Regarding the Originals. (3)  Copies of the Transcript or Recording. (4)  Notice of Filing. (g) Failure to Attend a Deposition or Serve a Subpoena; Expenses. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorneys fees, if the noticing party failed to: (1) attend and proceed with the deposition; or (2) serve a subpoena on a nonparty deponent, who consequently did not attend. (As amended Jan. 21, 1963 July 1, 1963 Mar. 30, 1970 July 1, 1970 Mar. 1, 1971 July 1, 1971 Nov. 20, 1972 July 1, 1975 Apr. 29, 1980 Aug. 1, 1980 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 17, 2000 Dec. 1, 2000 Apr. 30, 2007 Dec. 1, 2007 Apr. 29, 2015 Dec. 1, 2015 Apr. 27, 2020 Dec. 1, 2020  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) de bene esse; Note Note to Subdivisions (b) and (d) Note to Subdivisions (c) and (e) de bene esse; Note to Subdivision (f) Note to Subdivision (g) Notes of Advisory Committee on Rules1963 Amendment This amendment corresponds to the change in Rule 4(d)(4). See the Advisory Committees Note to that amendment. Notes of Advisory Committee on Rules1970 Amendment Subdivision (a) This subdivision is further revised in regard to the requirement of leave of court for taking a deposition. The present procedure, requiring a plaintiff to obtain leave of court if he serves notice of taking a deposition within 20 days after commencement of the action, is changed in several respects. First, leave is required by reference to the time the deposition is to be taken rather than the date of serving notice of taking. Second, the 20-day period is extended to 30 days and runs from the service of summons and complaint on any defendant, rather than the commencement of the action. Cf The purpose of requiring the plaintiff to obtain leave of court is, as stated by the Advisory Committee that proposed the present language of Rule 26(a), to protect a defendant who has not had an opportunity to retain counsel and inform himself as to the nature of the suit. Note to 1948 amendment of Rule 26(a), quoted in 3A Barron & Holtzoff, Federal Practice and Procedure Plaintiff is excused from obtaining leave even during the initial 30-day period if he gives the special notice provided in subdivision (b)(2). The required notice must state that the person to be examined is about to go out of the district where the action is pending and more than 100 miles from the place of trial, or out of the United States, or on a voyage to sea, and will be unavailable for examination unless deposed within the 30-day period. These events occur most often in maritime litigation, when seamen are transferred from one port to another or are about to go to sea. Yet, there are analogous situations in nonmaritime litigation, and although the maritime problems are more common, a rule limited to claims in the admiralty and maritime jurisdiction is not justified. In the recent unification of the civil and admiralty rules, this problem was temporarily met through addition in Rule 26(a) of a provision that depositions de bene esse may continue to be taken as to admiralty and maritime claims within the meaning of Rule 9(h). It was recognized at the time that a uniform rule applicable alike to what are now civil actions and suits in admiralty was clearly preferable, but the de bene esse procedure was adopted for the time being at least. See Advisory Committees note in Report of the Judicial Conference: Proposed Amendments to Rules of Civil Procedure 4344 (1966). The changes in Rule 30(a) and the new Rule 30(b)(2) provide a formula applicable to ordinary civil as well as maritime claims. They replace the provision for depositions de bene esse. They authorize an early deposition without leave of court where the witness is about to depart and, unless his deposition is promptly taken, (1) it will be impossible or very difficult to depose him before trial or (2) his deposition can later be taken but only with substantially increased effort and expense. Cf. S.S. Hai Chang The distance of 100 miles from place of trial is derived from the de bene esse Subdivision (b) Subdivision (b)(1) Subdivision (b)(2) Subdivision (b)(3) Subdivision (b)(4) e.g Subdivision (b)(5) Cf Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this rule will depend on the nature and volume of the documents or things. Both methods are made available. When the documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate discovery. If the discovering party insists on examining many and complex documents at the taking of the deposition, thereby causing undue burdens on others, the latter may, under Rules 26(c) or 30(d), apply for a court order that the examining party proceed via Rule 34 alone. Subdivision (b)(6) Cf This procedure supplements the existing practice whereby the examining party designates the corporate official to be deposed. Thus, if the examining party believes that certain officials who have not testified pursuant to this subdivision have added information, he may depose them. On the other hand, a courts decision whether to issue a protective order may take account of the availability and use made of the procedures provided in this subdivision. The new procedure should be viewed as an added facility for discovery, one which may be advantageous to both sides as well as an improvement in the deposition process. It will reduce the difficulties now encountered in determining, prior to the taking of a deposition, whether a particular employee or agent is a managing agent. See Note, Discovery Against Corporations Under the Federal Rules Cf. Haney v. Woodward & Lothrop, Inc E.g., United States v. Gahagan Dredging Corp Subdivision (c) The present rule provides that transcription shall be carried out unless all parties waive it. In view of the many depositions taken from which nothing useful is discovered, the revised language provides that transcription is to be performed if any party requests it. The fact of the request is relevant to the exercise of the courts discretion in determining who shall pay for transcription. Parties choosing to serve written questions rather than participate personally in an oral deposition are directed to serve their questions on the party taking the deposition, since the officer is often not identified in advance. Confidentiality is preserved, since the questions may be served in a sealed envelope. Subdivision (d) Subdivision (e) Subdivision (f)(1) Cf Notes of Advisory Committee on Rules1971 Amendment The subdivision permits a party to name a corporation or other form of organization as a deponent in the notice of examination and to describe in the notice the matters about which discovery is desired. The organization is then obliged to designate natural persons to testify on its behalf. The amendment clarifies the procedure to be followed if a party desires to examine a non-party organization through persons designated by the organization. Under the rules, a subpoena rather than a notice of examination is served on a non-party to compel attendance at the taking of a deposition. The amendment provides that a subpoena may name a non-party organization as the deponent and may indicate the matters about which discovery is desired. In that event, the non-party organization must respond by designating natural persons, who are then obliged to testify as to matters known or reasonably available to the organization. To insure that a non-party organization that is not represented by counsel has knowledge of its duty to designate, the amendment directs the party seeking discovery to advise of the duty in the body of the subpoena. Notes of Advisory Committee on Rules1972 Amendment Subdivision (c) Notes of Advisory Committee on Rules1980 Amendment Subdivision (b)(4) Subdivision (b)(7) Subdivision (f)(1) The amendment of the second paragraph is clarifying. The purpose of the paragraph is to permit a person who produces materials at a deposition to offer copies for marking and annexation to the deposition. Such copies are a substitute for the originals, which are not to be marked and which can thereafter be used or even disposed of by the person who produces them. In the light of that purpose, the former language of the paragraph had been justly termed opaque. Wright & Miller, Federal Practice and Procedure: Civil Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Subdivision (a) Paragraph (2) collects all provisions bearing on requirements of leave of court to take a deposition. Paragraph (2)(A) is new. It provides a limit on the number of depositions the parties may take, absent leave of court or stipulation with the other parties. One aim of this revision is to assure judicial review under the standards stated in Rule 26(b)(2) before any side will be allowed to take more than ten depositions in a case without agreement of the other parties. A second objective is to emphasize that counsel have a professional obligation to develop a mutual cost-effective plan for discovery in the case. Leave to take additional depositions should be granted when consistent with the principles of Rule 26(b)(2), and in some cases the ten-per-side limit should be reduced in accordance with those same principles. Consideration should ordinarily be given at the planning meeting of the parties under Rule 26(f) and at the time of a scheduling conference under Rule 16(b) as to enlargements or reductions in the number of depositions, eliminating the need for special motions. A deposition under Rule 30(b)(6) should, for purposes of this limit, be treated as a single deposition even though more than one person may be designated to testify. In multi-party cases, the parties on any side are expected to confer and agree as to which depositions are most needed, given the presumptive limit on the number of depositions they can take without leave of court. If these disputes cannot be amicably resolved, the court can be requested to resolve the dispute or permit additional depositions. Paragraph (2)(B) is new. It requires leave of court if any witness is to be deposed in the action more than once. This requirement does not apply when a deposition is temporarily recessed for convenience of counsel or the deponent or to enable additional materials to be gathered before resuming the deposition. If significant travel costs would be incurred to resume the deposition, the parties should consider the feasibility of conducting the balance of the examination by telephonic means. Paragraph (2)(C) revises the second sentence of the former subdivision (a) as to when depositions may be taken. Consistent with the changes made in Rule 26(d), providing that formal discovery ordinarily not commence until after the litigants have met and conferred as directed in revised Rule 26(f), the rule requires leave of court or agreement of the parties if a deposition is to be taken before that time (except when a witness is about to leave the country). Subdivision (b) Former subdivision (b)(2) is partly relocated in subdivision (a)(2)(C) of this rule. The latter two sentences of the first paragraph are deleted, in part because they are redundant to Rule 26(g) and in part because Rule 11 no longer applies to discovery requests. The second paragraph of the former subdivision (b)(2), relating to use of depositions at trial where a party was unable to obtain counsel in time for an accelerated deposition, is relocated in Rule 32. New paragraph (2) confers on the party taking the deposition the choice of the method of recording, without the need to obtain prior court approval for one taken other than stenographically. A party choosing to record a deposition only by videotape or audiotape should understand that a transcript will be required by Rule 26(a)(3)(B) and Rule 32(c) if the deposition is later to be offered as evidence at trial or on a dispositive motion under Rule 56. Objections to the nonstenographic recording of a deposition, when warranted by the circumstances, can be presented to the court under Rule 26(c). Paragraph (3) provides that other parties may arrange, at their own expense, for the recording of a deposition by a means (stenographic, visual, or sound) in addition to the method designated by the person noticing the deposition. The former provisions of this paragraph, relating to the courts power to change the date of a deposition, have been eliminated as redundant in view of Rule 26(c)(2). Revised paragraph (4) requires that all depositions be recorded by an officer designated or appointed under Rule 28 and contains special provisions designed to provide basic safeguards to assure the utility and integrity of recordings taken other than stenographically. Paragraph (7) is revised to authorize the taking of a deposition not only by telephone but also by other remote electronic means, such as satellite television, when agreed to by the parties or authorized by the court. Subdivision (c) In addition, the revision addresses a recurring problem as to whether other potential deponents can attend a deposition. Courts have disagreed, some holding that witnesses should be excluded through invocation of Rule 615 of the evidence rules, and others holding that witnesses may attend unless excluded by an order under Rule 26(c)(5). The revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate; and, if exclusion is ordered, consideration should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions. The revision addresses only the matter of attendance by potential deponents, and does not attempt to resolve issues concerning attendance by others, such as members of the public or press. Subdivision (d) i.e Directions to a deponent not to answer a question can be even more disruptive than objections. The second sentence of new paragraph (1) prohibits such directions except in the three circumstances indicated: to claim a privilege or protection against disclosure ( e.g Paragraph (2) is added to this subdivision to dispel any doubts regarding the power of the court by order or local rule to establish limits on the length of depositions. The rule also explicitly authorizes the court to impose the cost resulting from obstructive tactics that unreasonably prolong a deposition on the person engaged in such obstruction. This sanction may be imposed on a non-party witness as well as a party or attorney, but is otherwise congruent with Rule 26(g). It is anticipated that limits on the length of depositions prescribed by local rules would be presumptive only, subject to modification by the court or by agreement of the parties. Such modifications typically should be discussed by the parties in their meeting under Rule 26(f) and included in the scheduling order required by Rule 16(b). Additional time, moreover, should be allowed under the revised rule when justified under the principles stated in Rule 26(b)(2). To reduce the number of special motions, local rules should ordinarily permitand indeed encouragethe parties to agree to additional time, as when, during the taking of a deposition, it becomes clear that some additional examination is needed. Paragraph (3) authorizes appropriate sanctions not only when a deposition is unreasonably prolonged, but also when an attorney engages in other practices that improperly frustrate the fair examination of the deponent, such as making improper objections or giving directions not to answer prohibited by paragraph (1). In general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer. The making of an excessive number of unnecessary objections may itself constitute sanctionable conduct, as may the refusal of an attorney to agree with other counsel on a fair apportionment of the time allowed for examination of a deponent or a refusal to agree to a reasonable request for some additional time to complete a deposition, when that is permitted by the local rule or order. Subdivision (e) Subdivision (f) Committee Notes on Rules2000 Amendment Subdivision (d) The current rule places limitations on instructions that a witness not answer only when the instruction is made by a party. Similar limitations should apply with regard to anyone who might purport to instruct a witness not to answer a question. Accordingly, the rule is amended to apply the limitation to instructions by any person. The amendment is not intended to confer new authority on nonparties to instruct witnesses to refuse to answer deposition questions. The amendment makes it clear that, whatever the legitimacy of giving such instructions, the nonparty is subject to the same limitations as parties. Paragraph (2) imposes a presumptive durational limitation of one day of seven hours for any deposition. The Committee has been informed that overlong depositions can result in undue costs and delays in some circumstances. This limitation contemplates that there will be reasonable breaks during the day for lunch and other reasons, and that the only time to be counted is the time occupied by the actual deposition. For purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition. The presumptive duration may be extended, or otherwise altered, by agreement. Absent agreement, a court order is needed. The party seeking a court order to extend the examination, or otherwise alter the limitations, is expected to show good cause to justify such an order. Parties considering extending the time for a depositionand courts asked to order an extensionmight consider a variety of factors. For example, if the witness needs an interpreter, that may prolong the examination. If the examination will cover events occurring over a long period of time, that may justify allowing additional time. In cases in which the witness will be questioned about numerous or lengthy documents, it is often desirable for the interrogating party to send copies of the documents to the witness sufficiently in advance of the deposition so that the witness can become familiar with them. Should the witness nevertheless not read the documents in advance, thereby prolonging the deposition, a court could consider that a reason for extending the time limit. If the examination reveals that documents have been requested but not produced, that may justify further examination once production has occurred. In multi-party cases, the need for each party to examine the witness may warrant additional time, although duplicative questioning should be avoided and parties with similar interests should strive to designate one lawyer to question about areas of common interest. Similarly, should the lawyer for the witness want to examine the witness, that may require additional time. Finally, with regard to expert witnesses, there may more often be a need for additional timeeven after the submission of the report required by Rule 26(a)(2)for full exploration of the theories upon which the witness relies. It is expected that in most instances the parties and the witness will make reasonable accommodations to avoid the need for resort to the court. The limitation is phrased in terms of a single day on the assumption that ordinarily a single day would be preferable to a deposition extending over multiple days; if alternative arrangements would better suit the parties, they may agree to them. It is also assumed that there will be reasonable breaks during the day. Preoccupation with timing is to be avoided. The rule directs the court to allow additional time where consistent with Rule 26(b)(2) if needed for a fair examination of the deponent. In addition, if the deponent or another person impedes or delays the examination, the court must authorize extra time. The amendment makes clear that additional time should also be allowed where the examination is impeded by an other circumstance, which might include a power outage, a health emergency, or other event. In keeping with the amendment to Rule 26(b)(2), the provision added in 1993 granting authority to adopt a local rule limiting the time permitted for depositions has been removed. The court may enter a case-specific order directing shorter depositions for all depositions in a case or with regard to a specific witness. The court may also order that a deposition be taken for limited periods on several days. Paragraph (3) includes sanctions provisions formerly included in paragraph (2). It authorizes the court to impose an appropriate sanction on any person responsible for an impediment that frustrated the fair examination of the deponent. This could include the deponent, any party, or any other person involved in the deposition. If the impediment or delay results from an other circumstance under paragraph (2), ordinarily no sanction would be appropriate. Former paragraph (3) has been renumbered (4) but is otherwise unchanged. Subdivision (f)(1) Shall is replaced by must or may under the program to conform amended rules to current style conventions when there is no ambiguity. GAP Report Committee Notes on Rules2007 Amendment The language of Rule 30 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The right to arrange a deposition transcription should be open to any party, regardless of the means of recording and regardless of who noticed the deposition. [O]ther entity is added to the list of organizations that may be named as deponent. The purpose is to ensure that the deposition process can be used to reach information known or reasonably available to an organization no matter what abstract fictive concept is used to describe the organization. Nothing is gained by wrangling over the place to fit into current rule language such entities as limited liability companies, limited partnerships, business trusts, more exotic common-law creations, or forms developed in other countries. Committee Notes on Rules2015 Amendment Rule 30 is amended in parallel with Rules 31 and 33 to reflect the recognition of proportionality in Rule 26(b)(1). Committee Notes on Rules2020 Amendment Rule 30(b)(6) is amended to respond to problems that have emerged in some cases. Particular concerns raised have included overlong or ambiguously worded lists of matters for examination and inadequately prepared witnesses. This amendment directs the serving party and the named organization to confer before or promptly after the notice or subpoena is served about the matters for examination. The amendment also requires that a subpoena notify a nonparty organization of its duty to confer and to designate each person who will testify. It facilitates collaborative efforts to achieve the proportionality goals of the 2015 amendments to Rules 1 and 26(b)(1). Candid exchanges about the purposes of the deposition and the organizations information structure may clarify and focus the matters for examination, and enable the organization to designate and to prepare an appropriate witness or witnesses, thereby avoiding later disagreements. It may be productive also to discuss process issues, such as the timing and location of the deposition, the number of witnesses and the matters on which each witness will testify, and any other issue that might facilitate the efficiency and productivity of the deposition. The amended rule directs that the parties confer either before or promptly after the notice or subpoena is served. If they begin to confer before service, the discussion may be more productive if the serving party provides a draft of the proposed list of matters for examination, which may then be refined as the parties confer. The process of conferring may be iterative. Consistent with Rule 1, the obligation is to confer in good faith about the matters for examination, but the amendment does not require the parties to reach agreement. In some circumstances, it may be desirable to seek guidance from the court. When the need for a Rule 30(b)(6) deposition is known early in the case, the Rule 26(f) conference may provide an occasion for beginning discussion of these topics. In appropriate cases, it may also be helpful to include reference to Rule 30(b)(6) depositions in the discovery plan submitted to the court under Rule 26(f)(3) and in the matters considered at a pretrial conference under Rule 16. Because a Rule 31 deposition relies on written questions rather than a description with reasonable particularity of the matters for examination, the duty to confer about the matters for examination does not apply when an organization is deposed under Rule 31(a)(4). Effective Date of Amendment Proposed November 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972 January 2, 1975 section 3 of Pub. L. 93595 Jan. 2, 1975 88 Stat. 1959 section 2074 of this title Rule 31. Depositions by Written Questions (a) When a Deposition May Be Taken. (1)  Without Leave. (2)  With Leave. (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 30 by the plaintiffs, or by the defendants, or by the third-party defendants; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take a deposition before the time specified in Rule 26(d); or (B) if the deponent is confined in prison. (3)  Service; Required Notice. (4)  Questions Directed to an Organization. (5)  Questions from Other Parties. (b) Delivery to the Officer; Officers Duties. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (f) to: (1) take the deponents testimony in response to the questions; (2) prepare and certify the deposition; and (3) send it to the party, attaching a copy of the questions and of the notice. (c) Notice of Completion or Filing. (1)  Completion. (2)  Filing. (As amended Mar. 30, 1970 July 1, 1970 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007 Apr. 29, 2015 Dec. 1, 2015  Notes of Advisory Committee on Rules1937 This rule is in accordance with common practice. In most of the states listed in the Note Note Notes of Advisory Committee on Rules1970 Amendment Confusion is created by the use of the same terminology to describe both the taking of a deposition upon written interrogatories pursuant to this rule and the serving of written interrogatories upon parties pursuant to Rule 33. The distinction between these two modes of discovery will be more readily and clearly grasped through substitution of the word questions for interrogatories throughout this rule. Subdivision (a) The revised subdivision permits designation of the deponent by general description or by class or group. This conforms to the practice for depositions on oral examination. The new procedure provided in Rule 30(b)(6) for taking the deposition of a corporation or other organization through persons designated by the organization is incorporated by reference. The service of all questions, including cross, redirect, and recross, is to be made on all parties. This will inform the parties and enable them to participate fully in the procedure. The time allowed for service of cross, redirect, and recross questions has been extended. Experience with the existing time limits shows them to be unrealistically short. No special restriction is placed on the time for serving the notice of taking the deposition and the first set of questions. Since no party is required to serve cross questions less than 30 days after the notice and questions are served, the defendant has sufficient time to obtain counsel. The court may for cause shown enlarge or shorten the time. Subdivision (d) Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Subdivision (a) Committee Notes on Rules2007 Amendment The language of Rule 31 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The party who noticed a deposition on written questions must notify all other parties when the deposition is completed, so that they may make use of the deposition. A deposition is completed when it is recorded and the deponent has either waived or exercised the right of review under Rule 30(e)(1). Committee Notes on Rules2015 Amendment Rule 31 is amended in parallel with Rules 30 and 33 to reflect the recognition of proportionality in Rule 26(b)(1). Rule 32. Using Depositions in Court Proceedings (a) Using Depositions. (1)  In General. (A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8). (2)  Impeachment and Other Uses. (3)  Deposition of Party, Agent, or Designee. (4)  Unavailable Witness. (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witnesss absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition could not procure the witnesss attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirablein the interest of justice and with due regard to the importance of live testimony in open courtto permit the deposition to be used. (5)  Limitations on Use. (A)  Deposition Taken on Short Notice. (B)  Unavailable Deponent; Party Could Not Obtain an Attorney. (6)  Using Part of a Deposition. (7)  Substituting a Party. (8)  Deposition Taken in an Earlier Action. (b) Objections to Admissibility. Subject to Rules 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying. (c) Form of Presentation. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any partys request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise. (d) Waiver of Objections. (1)  To the Notice. (2)  To the Officers Qualification. (A) before the deposition begins; or (B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known. (3)  To the Taking of the Deposition. (A)  Objection to Competence, Relevance, or Materiality. (B)  Objection to an Error or Irregularity. (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a partys conduct, or other matters that might have been corrected at that time; and (ii) it is not timely made during the deposition. (C)  Objection to a Written Question. (4)  To Completing and Returning the Deposition. (As amended Mar. 30, 1970 July 1, 1970 Nov. 20, 1972 July 1, 1975 Apr. 29, 1980 Aug. 1, 1980 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 This rule is in accordance with common practice. In most of the states listed in the Note Note Notes of Advisory Committee on Rules1970 Amendment As part of the rearrangement of the discovery rules, existing subdivisions (d), (e), and (f) of Rule 26 are transferred to Rule 32 as new subdivisions (a), (b), and (c). The provisions of Rule 32 are retained as subdivision (d) of Rule 32 with appropriate changes in the lettering and numbering of subheadings. The new rule is given a suitable new title. A beneficial byproduct of the rearrangement is that provisions which are naturally related to one another are placed in one rule. A change is made in new Rule 32(a), whereby it is made clear that the rules of evidence are to be applied to depositions offered at trial as though the deponent were then present and testifying at trial. This eliminates the possibility of certain technical hearsay objections which are based, not on the contents of deponents testimony, but on his absence from court. The language of present Rule 26(d) does not appear to authorize these technical objections, but it is not entirely clear. Note present Rule 26(e), transferred to Rule 32(b); see 2A Barron & Holtzoff, Federal Practice and Procedure An addition in Rule 32(a)(2) provides for use of a deposition of a person designated by a corporation or other organization, which is a party, to testify on its behalf. This complements the new procedure for taking the deposition of a corporation or other organization provided in Rules 30(b)(6) and 31(a). The addition is appropriate, since the deposition is in substance and effect that of the corporation or other organization which is a party. A change is made in the standard under which a party offering part of a deposition in evidence may be required to introduce additional parts of the deposition. The new standard is contained in a proposal made by the Advisory Committee on Rules of Evidence. See Rule 107 and accompanying Note, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates References to other rules are changed to conform to the rearrangement, and minor verbal changes have been made for clarification. The time for objecting to written questions served under Rule 31 is slightly extended. Notes of Advisory Committee on Rules1972 Amendment Subdivision (e) Notes of Advisory Committee on Rules1980 Amendment Subdivision (a)(1) Subdivision (a)(4) Federal Practice and Procedure: Civil Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Subdivision (a) Subdivision (c) Committee Notes on Rules2007 Amendment The language of Rule 32 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 32(a) applied [a]t the trial or upon the hearing of a motion or an interlocutory proceeding. The amended rule describes the same events as a hearing or trial. The final paragraph of former Rule 32(a) allowed use in a later action of a deposition lawfully taken and duly filed in the former action. Because of the 2000 amendment of Rule 5(d), many depositions are not filed. Amended Rule 32(a)(8) reflects this change by excluding use of an unfiled deposition only if filing was required in the former action. Committee Notes on Rules2009 Amendment The times set in the former rule at less than 11 days and within 5 days have been revised to 14 days and 7 days. See the Note to Rule 6.  References in Text The Federal Rules of Evidence, referred to in subd. (a)(2), (8), are set out in this Appendix. Effective Date of Amendment Proposed November 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972 January 2, 1975 section 3 of Pub. L. 93595 Jan. 2, 1975 88 Stat. 1959 section 2074 of this title Rule 33. Interrogatories to Parties (a) In General. (1) Number. (2)  Scope. (b) Answers and Objections. (1)  Responding Party. (A) by the party to whom they are directed; or (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. (2)  Time to Respond. (3)  Answering Each Interrogatory. (4)  Objections. (5)  Signature. (c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence. (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a partys business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. (As amended Dec. 27, 1946 Mar. 19, 1948 Mar. 30, 1970 July 1, 1970 Apr. 29, 1980 Aug. 1, 1980 Apr. 22, 1993 Dec. 1, 1993 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 29, 2015 Dec. 1, 2015  Notes of Advisory Committee on Rules1937 This rule restates the substance of [former] Equity Rule 58 (DiscoveryInterrogatoriesInspection and Production of DocumentsAdmission of Execution or Genuineness), with modifications to conform to these rules. Notes of Advisory Committee on Rules1946 Amendment The added second sentence in the first paragraph of Rule 33 conforms with a similar change in Rule 26(a) and will avoid litigation as to when the interrogatories may be served. Original Rule 33 does not state the times at which parties may serve written interrogatories upon each other. It has been the accepted view, however, that the times were the same in Rule 33 as those stated in Rule 26(a). United States v. American Solvents & Chemical Corp. of California Sheldon v. Great Lakes Transit Corp Musher Foundation, Inc Alba Trading Co Moores Federal Practice Further in the first paragraph of Rule 33, the word service is substituted for delivery in conformance with the use of the word serve elsewhere in the rule and generally throughout the rules. See also Note to Rule 13(a) herein. The portion of the rule dealing with practice on objections has been revised so as to afford a clearer statement of the procedure. The addition of the words to interrogatories to which objection is made insures that only the answers to the objectionable interrogatories may be deferred, and that the answers to interrogatories not objectionable shall be forthcoming within the time prescribed in the rule. Under the original wording, answers to all interrogatories may be withheld until objections, sometimes to but a few interrogatories, are determined. The amendment expedites the procedure of the rule and serves to eliminate the strike value of objections to minor interrogatories. The elimination of the last sentence of the original rule is in line with the policy stated subsequently in this note. The added second paragraph in Rule 33 contributes clarity and specificity as to the use and scope of interrogatories to the parties. The field of inquiry will be as broad as the scope of examination under Rule 26(b). There is no reason why interrogatories should be more limited than depositions, particularly when the former represent an inexpensive means of securing useful information. See Hoffman v. Wilson Line, Inc Brewster v. Technicolor, Inc Kingsway Press, Inc. v. Farrell Publishing Corp Auer v. Hershey Creamery Co Tudor v. Leslie Knox v. Alter Byers Theaters, Inc. v. Murphy Coca-Cola Co. v. Dixi-Cola Laboratories, Inc Instruments of Discovery Under Federal Rules of Civil Procedure J. Schoeneman, Inc. v. Brauer Canuso v. City of Niagara Falls Hoffman v. Wilson Line, Inc., supra. By virtue of express language in the added second paragraph of Rule 33, as amended, any uncertainty as to the use of the answers to interrogatories is removed. The omission of a provision on this score in the original rule has caused some difficulty. See, e.g., Bailey v. New England Mutual Life Ins. Co The second sentence of the second paragraph in Rule 33, as amended, concerns the situation where a party wishes to serve interrogatories on a party after having taken his deposition, or vice versa. It has been held that an oral examination of a party, after the submission to him and answer of interrogatories, would be permitted. Howard v. State Marine Corp Stevens v. Minder Construction Co McNally v. Simons Currier v. Currier Notes of Advisory Committee on Rules1970 Amendment Subdivision (a) The Use of Discovery in United States District Courts The procedures now provided in Rule 33 seem calculated to encourage objections and court motions. The time periods now allowed for responding to interrogatories15 days for answers and 10 days for objectionsare too short. The Columbia Survey shows that tardy response to interrogatories is common, virtually expected. The same was reported in Speck, supra The time for objections is even shorter than for answers, and the party runs the risk that if he fails to object in time he may have waived his objections. E.g., Cleminshaw v. Beech Aircraft Corp Moores Federal Practice Federal Practice and Procedure Rule 33 assures that the objections will lead directly to court, through its requirement that they be served with a notice of hearing. Although this procedure does preclude an out-of-court resolution of the dispute, the procedure tends to discourage informal negotiations. If answers are served and they are thought inadequate, the interrogating party may move under Rule 37(a) for an order compelling adequate answers. There is no assurance that the hearing on objections and that on inadequate answers will be heard together. The amendment improves the procedure of Rule 33 in the following respects: (1) The time allowed for response is increased to 30 days and this time period applies to both answers and objections, but a defendant need not respond in less than 45 days after service of the summons and complaint upon him. As is true under existing law, the responding party who believes that some parts or all of the interrogatories are objectionable may choose to seek a protective order under new Rule 26(c) or may serve objections under this rule. Unless he applies for a protective order, he is required to serve answers or objections in response to the interrogatories, subject to the sanctions provided in Rule 37(d). Answers and objections are served together, so that a response to each interrogatory is encouraged, and any failure to respond is easily noted. (2) In view of the enlarged time permitted for response, it is no longer necessary to require leave of court for service of interrogatories. The purpose of this requirementthat defendant have time to obtain counsel before a response must be madeis adequately fulfilled by the requirement that interrogatories be served upon a party with or after service of the summons and complaint upon him. Some would urge that the plaintiff nevertheless not be permitted to serve interrogatories with the complaint. They fear that a routine practice might be invited, whereby form interrogatories would accompany most complaints. More fundamentally, they feel that, since very general complaints are permitted in present-day pleading, it is fair that the defendant have a right to take the lead in serving interrogatories. (These views apply also to Rule 36.) The amendment of Rule 33 rejects these views, in favor of allowing both parties to go forward with discovery, each free to obtain the information he needs respecting the case. (3) If objections are made, the burden is on the interrogating party to move under Rule 37(a) for a court order compelling answers, in the course of which the court will pass on the objections. The change in the burden of going forward does not alter the existing obligation of an objecting party to justify his objections. E.g., Pressley v. Boehlke The proposed changes are similar in approach to those adopted by California in 1961. See Calif.Code Civ.Proc.  2030(a). The experience of the Los Angeles Superior Court is informally reported as showing that the California amendment resulted in a significant reduction in court motions concerning interrogatories. Rhode Island takes a similar approach. See R. 33, R.I.R.Civ.Proc. Official Draft A change is made in subdivision (a) which is not related to the sequence of procedures. The restriction to adverse parties is eliminated. The courts have generally construed this restriction as precluding interrogatories unless an issue between the parties is disclosed by the pleadingseven though the parties may have conflicting interests. E.g., Mozeika v. Kaufman Construction Co Biddle v. Hutchinson Schlagenhauf v. Holder A second change in subdivision (a) is the addition of the term governmental agency to the listing of organizations whose answers are to be made by any officer or agent of the organization. This does not involve any change in existing law. Compare the similar listing in Rule 30(b)(6). The duty of a party to supplement his answers to interrogatories is governed by a new provision in Rule 26(e). Subdivision (b) e.g., Payer, Hewitt & Co. v. Bellanca Corp Zinsky v. New York Central R.R United States v. Carter Products, Inc Taylor v. Sound Steamship Lines, Inc Bynum v. United States Moores Federal Practice Federal Practice and Procedure Rule 33 is amended to provide that an interrogatory is not objectionable merely because it calls for an opinion or contention that relates to fact or the application of law to fact. Efforts to draw sharp lines between facts and opinions have invariably been unsuccessful, and the clear trend of the cases is to permit factual opinions. As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery. See Diversified Products Corp. v. Sports Center Co supra; Maine Civil Practice i.e Cf. United States v. Maryland & Va. Milk Producers Assn., Inc Since interrogatories involving mixed questions of law and fact may create disputes between the parties which are best resolved after much or all of the other discovery has been completed, the court is expressly authorized to defer an answer. Likewise, the court may delay determination until pretrial conference, if it believes that the dispute is best resolved in the presence of the judge. The principal question raised with respect to the cases permitting such interrogatories is whether they reintroduce undesirable aspects of the prior pleading practice, whereby parties were chained to misconceived contentions or theories, and ultimate determination on the merits was frustrated. See James, The Revival of Bills of Particulars under the Federal Rules e.g., McElroy v. United Air Lines, Inc Pressley v. Boehlke e.g., Zielinski v. Philadelphia Piers, Inc The use of answers to interrogatories at trial is made subject to the rules of evidence. The provisions governing use of depositions, to which Rule 33 presently refers, are not entirely apposite to answers to interrogatories, since deposition practice contemplates that all parties will ordinarily participate through cross-examination. See 4 Moores Federal Practice Certain provisions are deleted from subdivision (b) because they are fully covered by new Rule 26(c) providing for protective orders and Rules 26(a) and 26(d). The language of the subdivision is thus simplified without any change of substance. Subdivision (c) Modern California Discovery The Use of Discovery in United States District Courts Notes of Advisory Committee on Rules1980 Amendment Subdivision (c) Notes of Advisory Committee on Rules1993 Amendment Purpose of Revision Subdivision (a) Each party is allowed to serve 25 interrogatories upon any other party, but must secure leave of court (or a stipulation from the opposing party) to serve a larger number. Parties cannot evade this presumptive limitation through the device of joining as subparts questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication. As with the number of depositions authorized by Rule 30, leave to serve additional interrogatories is to be allowed when consistent with Rule 26(b)(2). The aim is not to prevent needed discovery, but to provide judicial scrutiny before parties make potentially excessive use of this discovery device. In many cases it will be appropriate for the court to permit a larger number of interrogatories in the scheduling order entered under Rule 16(b). Unless leave of court is obtained, interrogatories may not be served prior to the meeting of the parties under Rule 26(f). When a case with outstanding interrogatories exceeding the number permitted by this rule is removed to federal court, the interrogating party must seek leave allowing the additional interrogatories, specify which twenty-five are to be answered, or resubmit interrogatories that comply with the rule. Moreover, under Rule 26(d), the time for response would be measured from the date of the parties meeting under Rule 26(f). See Rule 81(c), providing that these rules govern procedures after removal. Subdivision (b) Paragraph (4) is added to make clear that objections must be specifically justified, and that unstated or untimely grounds for objection ordinarily are waived. Note also the provisions of revised Rule 26(b)(5), which require a responding party to indicate when it is withholding information under a claim of privilege or as trial preparation materials. These provisions should be read in light of Rule 26(g), authorizing the court to impose sanctions on a party and attorney making an unfounded objection to an interrogatory. Subdivisions (c) and (d) Committee Notes on Rules2006 Amendment Rule 33(d) is amended to parallel Rule 34(a) by recognizing the importance of electronically stored information. The term electronically stored information has the same broad meaning in Rule 33(d) as in Rule 34(a). Much business information is stored only in electronic form; the Rule 33(d) option should be available with respect to such records as well. Special difficulties may arise in using electronically stored information, either due to its form or because it is dependent on a particular computer system. Rule 33(d) allows a responding party to substitute access to documents or electronically stored information for an answer only if the burden of deriving the answer will be substantially the same for either party. Rule 33(d) states that a party electing to respond to an interrogatory by providing electronically stored information must ensure that the interrogating party can locate and identify it as readily as can the party served, and that the responding party must give the interrogating party a reasonable opportunity to examine, audit, or inspect the information. Depending on the circumstances, satisfying these provisions with regard to electronically stored information may require the responding party to provide some combination of technical support, information on application software, or other assistance. The key question is whether such support enables the interrogating party to derive or ascertain the answer from the electronically stored information as readily as the responding party. A party that wishes to invoke Rule 33(d) by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory. In that situation, the responding partys need to protect sensitive interests of confidentiality or privacy may mean that it must derive or ascertain and provide the answer itself rather than invoke Rule 33(d). Changes Made after Publication and Comment Committee Notes on Rules2007 Amendment The language of Rule 33 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence of former Rule 33(a) was a redundant cross-reference to the discovery moratorium provisions of Rule 26(d). Rule 26(d) is now familiar, obviating any need to carry forward the redundant cross-reference. Former Rule 33(b)(5) was a redundant reminder of Rule 37(a) procedure and is omitted as no longer useful. Former Rule 33(c) stated that an interrogatory is not necessarily objectionable merely because an answer * * * involves an opinion or contention * * *. [I]s not necessarily seemed to imply that the interrogatory might be objectionable merely for this reason. This implication has been ignored in practice. Opinion and contention interrogatories are used routinely. Amended Rule 33(a)(2) embodies the current meaning of Rule 33 by omitting necessarily. Changes Made After Publication and Comment Committee Notes on Rules2015 Amendment Rule 33 is amended in parallel with Rules 30 and 31 to reflect the recognition of proportionality in Rule 26(b)(1).  References in Text The Federal Rules of Evidence, referred to in subd. (c), are set out in this Appendix. Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes (a) In General. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding partys possession, custody, or control: (A) any designated documents or electronically stored informationincluding writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilationsstored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. (b) Procedure. (1)  Contents of the Request. (A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically stored information is to be produced. (2)  Responses and Objections. (A)  Time to Respond. (B)  Responding to Each Item. (C)  Objections. (D)  Responding to a Request for Production of Electronically Stored Information. (E)  Producing the Documents or Electronically Stored Information. (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. (c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. (As amended Dec. 27, 1946 Mar. 19, 1948 Mar. 30, 1970 July 1, 1970 Apr. 29, 1980 Aug. 1, 1980 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 29, 2015 Dec. 1, 2015  Notes of Advisory Committee on Rules1937 In England orders are made for the inspection of documents, English Rules Under the Judicature Act (The Annual Practice et seq Practically all states have statutes authorizing the court to order parties in possession or control of documents to permit other parties to inspect and copy them before trial. See Ragland, Discovery Before Trial Compare [former] Equity Rule 58 (DiscoveryInterrogatoriesInspection and Production of DocumentsAdmission of Execution or Genuineness) (fifth paragraph). Notes of Advisory Committee on Rules1946 Amendment The changes in clauses (1) and (2) correlate the scope of inquiry permitted under Rule 34 with that provided in Rule 26(b), and thus remove any ambiguity created by the former differences in language. As stated in Olson Transportation Co. v. Socony-Vacuum Oil Co An objection has been made that the word designated in Rule 34 has been construed with undue strictness in some district court cases so as to require great and impracticable specificity in the description of documents, papers, books, etc., sought to be inspected. The Committee, however, believes that no amendment is needed, and that the proper meaning of designated as requiring specificity has already been delineated by the Supreme Court. See Brown v. United States Consolidated Rendering Co. v. Vermont Notes of Advisory Committee on Rules1970 Amendment Rule 34 is revised to accomplish the following major changes in the existing rule: (1) to eliminate the requirement of good cause; (2) to have the rule operate extrajudicially; (3) to include testing and sampling as well as inspecting or photographing tangible things; and (4) to make clear that the rule does not preclude an independent action for analogous discovery against persons not parties. Subdivision (a) The good cause requirement was originally inserted in Rule 34 as a general protective provision in the absence of experience with the specific problems that would arise thereunder. As the note to Rule 26(b)(3) on trial preparation materials makes clear, good cause has been applied differently to varying classes of documents, though not without confusion. It has often been said in court opinions that good cause requires a consideration of need for the materials and of alternative means of obtaining them, i.e The revision of Rule 34 to have it operate extrajudicially, rather than by court order, is to a large extent a reflection of existing law office practice. The Columbia Survey shows that of the litigants seeking inspection of documents or things, only about 25 percent filed motions for court orders. This minor fraction nevertheless accounted for a significant number of motions. About half of these motions were uncontested and in almost all instances the party seeking production ultimately prevailed. Although an extrajudicial procedure will not drastically alter existing practice under Rule 34it will conform to it in most casesit has the potential of saving court time in a substantial though proportionately small number of cases tried annually. The inclusion of testing and sampling of tangible things and objects or operations on land reflects a need frequently encountered by parties in preparation for trial. If the operation of a particular machine is the basis of a claim for negligent injury, it will often be necessary to test its operating parts or to sample and test the products it is producing. Cf The inclusive description of documents is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondents devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden of expense, either by restricting discovery or requiring that the discovering party pay costs. Similarly, if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentially of nondiscoverable matters, and costs. Subdivision (b) Subdivision (c) Notes of Advisory Committee on Rules1980 Amendment Subdivision (b) Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar Association Report. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment This amendment reflects the change effected by revision of Rule 45 to provide for subpoenas to compel non-parties to produce documents and things and to submit to inspections of premises. The deletion of the text of the former paragraph is not intended to preclude an independent action for production of documents or things or for permission to enter upon land, but such actions may no longer be necessary in light of this revision. Notes of Advisory Committee on Rules1993 Amendment The rule is revised to reflect the change made by Rule 26(d), preventing a party from seeking formal discovery prior to the meeting of the parties required by Rule 26(f). Also, like a change made in Rule 33, the rule is modified to make clear that, if a request for production is objectionable only in part, production should be afforded with respect to the unobjectionable portions. When a case with outstanding requests for production is removed to federal court, the time for response would be measured from the date of the parties meeting. See Rule 81(c), providing that these rules govern procedures after removal. Committee Notes on Rules2006 Amendment Subdivision (a) Discoverable information often exists in both paper and electronic form, and the same or similar information might exist in both. The items listed in Rule 34(a) show different ways in which information may be recorded or stored. Images, for example, might be hard-copy documents or electronically stored information. The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as e-mail. The rule coverseither as documents or as electronically stored informationinformation stored in any medium, to encompass future developments in computer technology. Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments. References elsewhere in the rules to electronically stored information should be understood to invoke this expansive approach. A companion change is made to Rule 33(d), making it explicit that parties choosing to respond to an interrogatory by permitting access to responsive records may do so by providing access to electronically stored information. More generally, the term used in Rule 34(a)(1) appears in a number of other amendments, such as those to Rules 26(a)(1), 26(b)(2), 26(b)(5)(B), 26(f), 34(b), 37(f), and 45. In each of these rules, electronically stored information has the same broad meaning it has under Rule 34(a)(1). References to documents appear in discovery rules that are not amended, including Rules 30(f), 36(a), and 37(c)(2). These references should be interpreted to include electronically stored information as circumstances warrant. The term electronically stored information is broad, but whether material that falls within this term should be produced, and in what form, are separate questions that must be addressed under Rules 26(b), 26(c), and 34(b). The Rule 34(a) requirement that, if necessary, a party producing electronically stored information translate it into reasonably usable form does not address the issue of translating from one human language to another. See In re Puerto Rico Elect. Power Auth. Rule 34(a)(1) is also amended to make clear that parties may request an opportunity to test or sample materials sought under the rule in addition to inspecting and copying them. That opportunity may be important for both electronically stored information and hard-copy materials. The current rule is not clear that such testing or sampling is authorized; the amendment expressly permits it. As with any other form of discovery, issues of burden and intrusiveness raised by requests to test or sample can be addressed under Rules 26(b)(2) and 26(c). Inspection or testing of certain types of electronically stored information or of a responding partys electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a partys electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems. Rule 34(a)(1) is further amended to make clear that tangible things mustlike documents and land sought to be examinedbe designated in the request. Subdivision (b) The amendment to Rule 34(b) permits the requesting party to designate the form or forms in which it wants electronically stored information produced. The form of production is more important to the exchange of electronically stored information than of hard-copy materials, although a party might specify hard copy as the requested form. Specification of the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery of electronically stored information. The rule recognizes that different forms of production may be appropriate for different types of electronically stored information. Using current technology, for example, a party might be called upon to produce word processing documents, e-mail messages, electronic spreadsheets, different image or sound files, and material from databases. Requiring that such diverse types of electronically stored information all be produced in the same form could prove impossible, and even if possible could increase the cost and burdens of producing and using the information. The rule therefore provides that the requesting party may ask for different forms of production for different types of electronically stored information. The rule does not require that the requesting party choose a form or forms of production. The requesting party may not have a preference. In some cases, the requesting party may not know what form the producing party uses to maintain its electronically stored information, although Rule 26(f)(3) is amended to call for discussion of the form of production in the parties prediscovery conference. The responding party also is involved in determining the form of production. In the written response to the production request that Rule 34 requires, the responding party must state the form it intends to use for producing electronically stored information if the requesting party does not specify a form or if the responding party objects to a form that the requesting party specifies. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs. A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b), runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form. Additional time might be required to permit a responding party to assess the appropriate form or forms of production. If the requesting party is not satisfied with the form stated by the responding party, or if the responding party has objected to the form specified by the requesting party, the parties must meet and confer under Rule 37(a)(2)(B) in an effort to resolve the matter before the requesting party can file a motion to compel. If they cannot agree and the court resolves the dispute, the court is not limited to the forms initially chosen by the requesting party, stated by the responding party, or specified in this rule for situations in which there is no court order or party agreement. If the form of production is not specified by party agreement or court order, the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. Rule 34(a) requires that, if necessary, a responding party translate information it produces into a reasonably usable form. Under some circumstances, the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information. The rule does not require a party to produce electronically stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature. Some electronically stored information may be ordinarily maintained in a form that is not reasonably usable by any party. One example is legacy data that can be used only by superseded systems. The questions whether a producing party should be required to convert such information to a more usable form, or should be required to produce it at all, should be addressed under Rule 26(b)(2)(B). Whether or not the requesting party specified the form of production, Rule 34(b) provides that the same electronically stored information ordinarily be produced in only one form. Changes Made after Publication and Comment The references to the form of production are changed in the rule and Committee Note to refer also to forms. Different forms may be appropriate or necessary for different sources of information. The published proposal allowed the requesting party to specify a form for production and recognized that the responding party could object to the requested form. This procedure is now amplified by directing that the responding party state the form or forms it intends to use for production if the request does not specify a form or if the responding party objects to the requested form. The default forms of production to be used when the parties do not agree on a form and there is no court order are changed in part. As in the published proposal, one default form is a form or forms in which [electronically stored information] is ordinarily maintained. The alternative default form, however, is changed from an electronically searchable form to a form or forms that are reasonably usable. [A]n electronically searchable form proved to have several defects. Some electronically stored information cannot be searched electronically. In addition, there often are many different levels of electronic searchabilitythe published default would authorize production in a minimally searchable form even though more easily searched forms might be available at equal or less cost to the responding party. The provision that absent court order a party need not produce the same electronically stored information in more than one form was moved to become a separate item for the sake of emphasis. The Committee Note was changed to reflect these changes in rule text, and also to clarify many aspects of the published Note. In addition, the Note was expanded to add a caveat to the published amendment that establishes the rule that documentsand now electronically stored informationmay be tested and sampled as well as inspected and copied. Fears were expressed that testing and sampling might imply routine direct access to a partys information system. The Note states that direct access is not a routine right, although such access might be justified in some circumstances. The changes in the rule text since publication are set out below. [Omitted] Committee Notes on Rules2007 Amendment The language of Rule 34 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence in the first paragraph of former Rule 34(b) was a redundant cross-reference to the discovery moratorium provisions of Rule 26(d). Rule 26(d) is now familiar, obviating any need to carry forward the redundant cross-reference. The redundant reminder of Rule 37(a) procedure in the second paragraph of former Rule 34(b) is omitted as no longer useful. Changes Made After Publication and Comment Committee Notes on Rules2015 Amendment Several amendments are made in Rule 34, aimed at reducing the potential to impose unreasonable burdens by objections to requests to produce. Rule 34(b)(2)(A) is amended to fit with new Rule 26(d)(2). The time to respond to a Rule 34 request delivered before the parties Rule 26(f) conference is 30 days after the first Rule 26(f) conference. Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This provision adopts the language of Rule 33(b)(4), eliminating any doubt that less specific objections might be suitable under Rule 34. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection. An objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad. Examples would be a statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources. When there is such an objection, the statement of what has been withheld can properly identify as matters withheld anything beyond the scope of the search specified in the objection. Rule 34(b)(2)(B) is further amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. The response to the request must state that copies will be produced. The production must be completed either by the time for inspection specified in the request or by another reasonable time specifically identified in the response. When it is necessary to make the production in stages the response should specify the beginning and end dates of the production. Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection. This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been withheld. Rule 35. Physical and Mental Examinations (a) Order for an Examination. (1)  In General. (2)  Motion and Notice; Contents of the Order. (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. (b) Examiners Report. (1)  Request by the Party or Person Examined. (2)  Contents. (3)  Request by the Moving Party. (4)  Waiver of Privilege. (5)  Failure to Deliver a Report. (6)  Scope. (As amended Mar. 30, 1970 July 1, 1970 Mar. 2, 1987 Aug. 1, 1987 Pub. L. 100690, title VII,  7047(b) Nov. 18, 1988 102 Stat. 4401 Apr. 30, 1991 Dec. 1, 1991 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Physical examination of parties before trial is authorized by statute or rule in a number of states. See Ariz.Rev.Code Ann. (Struckmeyer, 1928)  4468; Mich.Court Rules Ann. (Searl, 1933) Rule 41,  2; 2 N.J.Comp.Stat. (1910), N.Y.C.P.A. (1937)  306; 1 S.D.Comp.Laws (1929)  2716A; 3 Wash.Rev.Stat.Ann. (Remington, 1932)  12301. Mental examination of parties is authorized in Iowa. Iowa Code (1935) ch. 491F1. See McCash, The Evolution of the Doctrine of Discovery and Its Present Status in Iowa The constitutionality of legislation providing for physical examination of parties was sustained in Lyon v. Manhattan Railway Co McGovern v. Hope Union Pacific Ry. Co. v. Botsford Camden and Suburban Ry. Co. v. Stetson Act of June 19, 1934, ch. 651 Notes of Advisory Committee on Rules1970 Amendment Subdivision (a) The amendment will settle beyond doubt that a parent or guardian suing to recover for injuries to a minor may be ordered to produce the minor for examination. Further, the amendment expressly includes blood examination within the kinds of examinations that can be ordered under the rule. See Beach v. Beach The amendment makes no change in the requirements of Rule 35 that, before a court order may issue, the relevant physical or mental condition must be shown to be in controversy and good cause must be shown for the examination. Thus, the amendment has no effect on the recent decision of the Supreme Court in Schlagenhauf v. Holder Subdivision (b)(1) The amendment specifies that the written report of the examining physician includes results of all tests made, such as results of X-rays and cardiograms. It also embodies changes required by the broadening of Rule 35(a) to take in persons who are not parties. Subdivision (b)(3) Moores Federal Practice Federal Practice and Procedure The subdivision also makes clear that reports of examining physicians are discoverable not only under Rule 35(b) but under other rules as well. To be sure, if the report is privileged, then discovery is not permissible under any rule other than Rule 35(b) and it is permissible under Rule 35(b) only if the party requests a copy of the report of examination made by the other partys doctor. Sher v. De Haven cert. denied e.g., Galloway v. National Dairy Products Corp E.g., Leszynski v. Russ Buffington v. Wood Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment The revision authorizes the court to require physical or mental examinations conducted by any person who is suitably licensed or certified. The rule was revised in 1988 by Congressional enactment to authorize mental examinations by licensed clinical psychologists. This revision extends that amendment to include other certified or licensed professionals, such as dentists or occupational therapists, who are not physicians or clinical psychologists, but who may be well-qualified to give valuable testimony about the physical or mental condition that is the subject of dispute. The requirement that the examiner be suitably The courts responsibility to determine the suitability of the examiners qualifications applies even to a proposed examination by a physician. If the proposed examination and testimony calls for an expertise that the proposed examiner does not have, it should not be ordered, even if the proposed examiner is a physician. The rule does not, however, require that the license or certificate be conferred by the jurisdiction in which the examination is conducted. Committee Notes on Rules2007 Amendment The language of Rule 35 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Amendment by Public Law 1988Subd. (a). Pub. L. 100690,  7047(b)(1) Subd. (b). Pub. L. 100690,  7047(b)(2) Subd. (c). Pub. L. 100690,  7047(b)(3) Rule 36. Requests for Admission (a) Scope and Procedure. (1)  Scope. (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. (2)  Form; Copy of a Document. (3)  Time to Respond; Effect of Not Responding. (4)  Answer. (5)  Objections. (6)  Motion Regarding the Sufficiency of an Answer or Objection. (b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding. (As amended Dec. 27, 1946 Mar. 19, 1948 Mar. 30, 1970 July 1, 1970 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Compare similar rules: [Former] Equity Rule 58 (last paragraph, which provides for the admission of the execution and genuineness of documents); English Rules Under the Judicature Act Notes of Advisory Committee on Rules1946 Amendment The first change in the first sentence of Rule 36(a) and the addition of the new second sentence, specifying when requests for admissions may be served, bring Rule 36 in line with amended Rules 26(a) and 33. There is no reason why these rules should not be treated alike. Other provisions of Rule 36(a) give the party whose admissions are requested adequate protection. The second change in the first sentence of the rule [subdivision (a)] removes any uncertainty as to whether a party can be called upon to admit matters of fact other than those set forth in relevant documents described in and exhibited with the request. In Smyth v. Kaufman The substitution of the word served for delivered in the third sentence of the amended rule [said subdivision] is in conformance with the use of the word serve elsewhere in the rule and generally throughout the rules. See also Notes to Rules 13(a) and 33 herein. The substitution [in said subdivision] of shorter or longer for further will enable a court to designate a lesser period than 10 days for answer. This conforms with a similar provision already contained in Rule 33. The addition of clause (2) [in said subdivision] specifies the method by which a party may challenge the propriety of a request to admit. There has been considerable difference of judicial opinion as to the correct method, if any, available to secure relief from an allegedly improper request. See Commentary, Methods of Objecting to Notice to Admit International Carbonic Engineering Co. v. Natural Carbonic Products, Inc The first of the added last two sentences [in said subdivision] prevents an objection to a part of a request from holding up the answer, if any, to the remainder. See similar proposed change in Rule 33. The last sentence strengthens the rule by making the denial accurately reflect the partys position. It is taken, with necessary changes, from Rule 8(b). Notes of Advisory Committee on Rules1970 Amendment Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be. The changes made in the rule are designed to serve these purposes more effectively. Certain disagreements in the courts about the proper scope of the rule are resolved. In addition, the procedural operation of the rule is brought into line with other discovery procedures, and the binding effect of an admission is clarified. See generally Finman, The Request for Admissions in Federal Civil Procedure Subdivision (a) e.g., Jackson Bluff Corp. v. Marcelle California v. The S.S. Jules Fribourg e.g., Photon, Inc. v. Harris Intertype, Inc Hise v. Lockwood Grader Corp e.g., Minnesota Mining and Mfg. Co. v. Norton Co McSparran v. Hanigan Not only is it difficult as a practical matter to separate fact from opinion, see 4 Moores Federal Practice cf Federal Practice and Procedure McSparran v. Hanigan, supra Requests for admission involving the application of law to fact may create disputes between the parties which are best resolved in the presence of the judge after much or all of the other discovery has been completed. Power is therefore expressly conferred upon the court to defer decision until a pretrial conference is held or until a designated time prior to trial. On the other hand, the court should not automatically defer decision; in many instances, the importance of the admission lies in enabling the requesting party to avoid the burdensome accumulation of proof prior to the pretrial conference. Courts have also divided on whether an answering party may properly object to request for admission as to matters which that party regards as in dispute. Compare, e.g., Syracuse Broadcasting Corp. v. Newhouse Driver v. Gindy Mfg. Corp e.g., McGonigle v. Baxter United States v. Ehbauer On the other hand, requests to admit may be so voluminous and so framed that the answering party finds the task of identifying what is in dispute and what is not unduly burdensome. If so, the responding party may obtain a protective order under Rule 26(c). Some of the decisions sustaining objections on disputability grounds could have been justified by the burdensome character of the requests. See, e.g., Syracuse Broadcasting Corp. v. Newhouse, supra. Another sharp split of authority exists on the question whether a party may base his answer on lack of information or knowledge without seeking out additional information. One line of cases has held that a party may answer on the basis of such knowledge as he has at the time he answers. E.g., Jackson Buff Corp. v. Marcelle Sladek v. General Motors Corp E.g., Hise v. Lockwood Grader Corp E. H. Tate Co. v. Jiffy Enterprises, Inc supra Moores Federal Practice Federal Practice and Procedure The rule as revised adopts the majority view, as in keeping with a basic principle of the discovery rules that a reasonable burden may be imposed on the parties when its discharge will facilitate preparation for trial and ease the trial process. It has been argued against this view that one side should not have the burden of proving the other sides case. The revised rule requires only that the answering party make reasonable inquiry and secure such knowledge and information as are readily obtainable by him. In most instances, the investigation will be necessary either to his own case or to preparation for rebuttal. Even when it is not, the information may be close enough at hand to be readily obtainable. Rule 36 requires only that the party state that he has taken these steps. The sanction for failure of a party to inform himself before he answers lies in the award of costs after trial, as provided in Rule 37(c). The requirement that the answer to a request for admission be sworn is deleted, in favor of a provision that the answer be signed by the party or by his attorney. The provisions of Rule 36 make it clear that admissions function very much as pleadings do. Thus, when a party admits in part and denies in part, his admission is for purposes of the pending action only and may not be used against him in any other proceeding. The broadening of the rule to encompass mixed questions of law and fact reinforces this feature. Rule 36 does not lack a sanction for false answers; Rule 37(c) furnishes an appropriate deterrent. The existing language describing the available grounds for objection to a request for admission is eliminated as neither necessary nor helpful. The statement that objection may be made to any request, which is improper adds nothing to the provisions that the party serve an answer or objection addressed to each matter and that he state his reasons for any objection. None of the other discovery rules set forth grounds for objection, except so far as all are subject to the general provisions of Rule 26. Changes are made in the sequence of procedures in Rule 36 so that they conform to the new procedures in Rules 33 and 34. The major changes are as follows: (1) The normal time for response to a request for admissions is lengthened from 10 to 30 days, conforming more closely to prevailing practice. A defendant need not respond, however, in less than 45 days after service of the summons and complaint upon him. The court may lengthen or shorten the time when special situations require it. (2) The present requirement that the plaintiff wait 10 days to serve requests without leave of court is eliminated. The revised provision accords with those in Rules 33 and 34. (3) The requirement that the objecting party move automatically for a hearing on his objection is eliminated, and the burden is on the requesting party to move for an order. The change in the burden of going forward does not modify present law on burden of persuasion. The award of expenses incurred in relation to the motion is made subject to the comprehensive provisions of Rule 37(a)(4). (4) A problem peculiar to Rule 36 arises if the responding party serves answers that are not in conformity with the requirements of the rulefor example, a denial is not specific, or the explanation of inability to admit or deny is not in detail. Rule 36 now makes no provision for court scrutiny of such answers before trial, and it seems to contemplate that defective answers bring about admissions just as effectively as if no answer had been served. Some cases have so held. E.g., Southern Ry. Co. v. Crosby United States v. Laney Giving a defective answer the automatic effect of an admission may cause unfair surprise. A responding party who purported to deny or to be unable to admit or deny will for the first time at trial confront the contention that he has made a binding admission. Since it is not always easy to know whether a denial is specific or an explanation is in detail, neither party can know how the court will rule at trial and whether proof must be prepared. Some courts, therefore, have entertained motions to rule on defective answers. They have at times ordered that amended answers be served, when the defects were technical, and at other times have declared that the matter was admitted. E.g., Woods v. Stewart SEC v. Kaye, Real & Co Seibs Hatcheries, Inc. v. Lindley Subdivision (b) E.g., Ark.-Tenn Distributing Corp. v. Breidt United States v. Lemons Moores Federal Practice e.g., Alamo v. Del Rosario Ark-Tenn Lemons, supra McSparran v. Hanigan The new provisions give an admission a conclusively binding effect, for purposes only of the pending action, unless the admission is withdrawn or amended. In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party. Louisell, Modern California Discovery Federal Practice and Procedure Maine Civil Practice supra Provision is made for withdrawal or amendment of an admission. This provision emphasizes the importance of having the action resolved on the merits, while at the same time assuring each party that justified reliance on an admission in preparation for trial will not operate to his prejudice. Cf. Moosman v. Joseph P. Blitz, Inc Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The rule is revised to reflect the change made by Rule 26(d), preventing a party from seeking formal discovery until after the meeting of the parties required by Rule 26(f). Committee Notes on Rules2007 Amendment The language of Rule 36 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence of the first paragraph of former Rule 36(a) was a redundant cross-reference to the discovery moratorium provisions of Rule 26(d). Rule 26(d) is now familiar, obviating any need to carry forward the redundant cross-reference. The redundant reminder of Rule 37(c) in the second paragraph was likewise omitted. Changes Made After Publication and Comment Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (a) Motion for an Order Compelling Disclosure or Discovery. (1)  In General. (2)  Appropriate Court. (3)  Specific Motions. (A)  To Compel Disclosure. (B)  To Compel a Discovery Response. (i) a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to produce documents or fails to respond that inspection will be permittedor fails to permit inspectionas requested under Rule 34. (C)  Related to a Deposition. (4)  Evasive or Incomplete Disclosure, Answer, or Response. (5)  Payment of Expenses; Protective Orders. (A)  If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing partys nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. (B)  If the Motion Is Denied. (C)  If the Motion Is Granted in Part and Denied in Part. (b) Failure to Comply with a Court Order. (1)  Sanctions Sought in the District Where the Deposition Is Taken. (2)  Sanctions Sought in the District Where the Action Is Pending. (A)  For Not Obeying a Discovery Order. (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. (B)  For Not Producing a Person for Examination. (C)  Payment of Expenses. (c) Failure to Disclose, to Supplement an Earlier Response, or to Admit. (1)  Failure to Disclose or Supplement. (A) may order payment of the reasonable expenses, including attorneys fees, caused by the failure; (B) may inform the jury of the partys failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)(vi). (2)  Failure to Admit. (A) the request was held objectionable under Rule 36(a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit. (d) Partys Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. (1)  In General. (A)  Motion; Grounds for Sanctions. (i) a party or a partys officer, director, or managing agentor a person designated under Rule 30(b)(6) or 31(a)(4)fails, after being served with proper notice, to appear for that persons deposition; or (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. (B)  Certification. (2)  Unacceptable Excuse for Failing to Act. (3)  Types of Sanctions. (e) Failure to Preserve Electronically Stored Information. 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 informations use in the litigation may: (A) presume that the lost 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. (f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorneys fees, caused by the failure. (As amended Dec. 29, 1948 Oct. 20, 1949 Mar. 30, 1970 July 1, 1970 Apr. 29, 1980 Aug. 1, 1980 Pub. L. 96481,  205(a) Oct. 21, 1980 94 Stat. 2330 Oct. 1, 1981 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 17, 2000 Dec. 1, 2000 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 16, 2013 Dec. 1, 2013 Apr. 29, 2015 Dec. 1, 2015  Notes of Advisory Committee on Rules1937 The provisions of this rule authorizing orders establishing facts or excluding evidence or striking pleadings, or authorizing judgments of dismissal or default, for refusal to answer questions or permit inspection or otherwise make discovery, are in accord with Hammond Packing Co. v. Arkansas Hovey v. Elliott Notes of Advisory Committee on Rules1948 Amendment The amendment substitutes the present statutory reference. Notes of Advisory Committee on Rules1970 Amendment Rule 37 provides generally for sanctions against parties or persons unjustifiably resisting discovery. Experience has brought to light a number of defects in the language of the rule as well as instances in which it is not serving the purposes for which it was designed. See Rosenberg, Sanctions to Effectuate Pretrial Discovery Rule 37 sometimes refers to a failure to afford discovery and at other times to a refusal to do so. Taking note of this dual terminology, courts have imported into refusal a requirement of wilfullness. See Roth v. Paramount Pictures Corp Campbell v. Johnson Societe Internationale v. Rogers Societe Hinson v. Michigan Mutual Liability Co Societe Internationale supra Subdivision (a) Subdivision (a)(1) Lincoln Laboratories, Inc. v. Savage Laboratories, Inc Subdivision (a)(2) Subdivision (a)(3) E.g., Cone Mills Corp. v. Joseph Bancroft & Sons Co Subdivision (a)(4) On many occasions, to be sure, the dispute over discovery between the parties is genuine, though ultimately resolved one way or the other by the court. In such cases, the losing party is substantially justified in carrying the matter to court. But the rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists. And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery. The present provision of Rule 37(a) that the court shall require payment if it finds that the defeated party acted without substantial justification may appear adequate, but in fact it has been little used. Only a handful of reported cases include an award of expenses, and the Columbia Survey found that in only one instance out of about 50 motions decided under Rule 37(a) did the court award expenses. It appears that the courts do not utilize the most important available sanction to deter abusive resort to the judiciary. The proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court. At the same time, a necessary flexibility is maintained, since the court retains the power to find that other circumstances make an award of expenses unjustas where the prevailing party also acted unjustifiably. The amendment does not significantly narrow the discretion of the court, but rather presses the court to address itself to abusive practices. The present provision that expenses may be imposed upon either the party or his attorney or both is unchanged. But it is not contemplated that expenses will be imposed upon the attorney merely because the party is indigent. Subdivision (b) The scope of Rule 37(b)(2) is broadened by extending it to include any order to provide or permit discovery, including orders issued under Rules 37(a) and 35. Various rules authorize orders for discovery e.g supra Cf. Societe Internationale v. Rogers A new subsection (E) provides that sanctions which have been available against a party for failure to comply with an order under Rule 35(a) to submit to examination will now be available against him for his failure to comply with a Rule 35(a) order to produce a third person for examination, unless he shows that he is unable to produce the person. In this context, unable means in effect unable in good faith. See Societe Internationale v. Rogers Subdivision (b)(2) is amplified to provide for payment of reasonable expenses caused by the failure to obey the order. Although Rules 37(b)(2) and 37(d) have been silent as to award of expenses, courts have nevertheless ordered them on occasion. E.g., United Sheeplined Clothing Co. v. Arctic Fur Cap Corp Austin Theatre, Inc. v. Warner Bros. Picture, Inc An added reference to directors of a party is similar to a change made in subdivision (d) and is explained in the note to that subdivision. The added reference to persons designated by a party under Rules 30(b)(6) or 31(a) to testify on behalf of the party carries out the new procedure in those rules for taking a deposition of a corporation or other organization. Subdivision (c) Rule 37(c), as now written, addresses itself in terms only to the sworn denial and is silent with respect to the statement of reasons for an inability to admit or deny. There is no apparent basis for this distinction, since the sanction provided in Rule 37(c) should deter all unjustified failures to admit. This omission in the rule has caused confused and diverse treatment in the courts. One court has held that if a party gives inadequate reasons, he should be treated before trial as having denied the request, so that Rule 37(c) may apply. Bertha Bldg. Corp. v. National Theatres Corp Heng Hsin Co. v. Stern, Morgenthau & Co Dec. 10, 1954 United States Plywood Corp. v. Hudson Lumber Co The Request for Admissions in Federal Civil Procedure Additional provisions in Rule 37(c) protect a party from having to pay expenses if the request for admission was held objectionable under Rule 36(a) or if the party failing to admit had reasonable ground to believe that he might prevail on the matter. The latter provision emphasizes that the true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail. Subdivision (d) Two related changes are made in subdivision (d): the permissible sanctions are broadened to include such orders as are just; and the requirement that the failure to appear or respond be wilful is eliminated. Although Rule 37(d) in terms provides for only three sanctions, all rather severe, the courts have interpreted it as permitting softer sanctions than those which it sets forth. E.g., Gill v. Stolow Saltzman v. Birrell Federal Practice and Procedure The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be wilful. The concept of wilful failure is at best subtle and difficult, and the cases do not supply a bright line. Many courts have imposed sanctions without referring to wilfullness. E.g., Milewski v. Schneider Transportation Co Dictograph Products, Inc. v. Kentworth Corp Dunn. v. Pa. R.R cf. Maurer-Neuer, Inc. v. United Packinghouse Workers Societe Internationale v. Rogers A provision is added to make clear that a party may not properly remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests to inspect as improper and objectionable. If he desires not to appear or not to respond, he must apply for a protective order. The cases are divided on whether a protective order must be sought. Compare Collins v. Wayland cert. den Bourgeois v. El Paso Natural Gas Co Loosley v. Stone Scarlatos v. Kulukundis Ross v. True Temper Corp supra Federal Practice and Procedure Cf Federal Practice and Procedure The failure of an officer or managing agent of a party to make discovery as required by present Rule 37(d) is treated as the failure of the party. The rule as revised provides similar treatment for a director of a party. There is slight warrant for the present distinction between officers and managing agents on the one hand and directors on the other. Although the legal power over a director to compel his making discovery may not be as great as over officers or managing agents, Campbell v. General Motors Corp Cf. Societe Internationale v. Rogers Subdivision (e) Subdivision (f) Federal Practice and Procedure A major change in the law was made in 1966, 80 Stat. 308 Notes of Advisory Committee on Rules1980 Amendment Subdivision (b)(2) Subdivision (e) Subdivision (g) Failure of United States to Participate in Good Faith in Discovery Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Subdivision (a) Pursuant to new subdivision (a)(2)(A), a party dissatisfied with the disclosure made by an opposing party may under this rule move for an order to compel disclosure. In providing for such a motion, the revised rule parallels the provisions of the former rule dealing with failures to answer particular interrogatories. Such a motion may be needed when the information to be disclosed might be helpful to the party seeking the disclosure but not to the party required to make the disclosure. If the party required to make the disclosure would need the material to support its own contentions, the more effective enforcement of the disclosure requirement will be to exclude the evidence not disclosed, as provided in subdivision (c)(1) of this revised rule. Language is included in the new paragraph and added to the subparagraph (B) that requires litigants to seek to resolve discovery disputes by informal means before filing a motion with the court. This requirement is based on successful experience with similar local rules of court promulgated pursuant to Rule 83. The last sentence of paragraph (2) is moved into paragraph (4). Under revised paragraph (3), evasive or incomplete disclosures and responses to interrogatories and production requests are treated as failures to disclose or respond. Interrogatories and requests for production should not be read or interpreted in an artificially restrictive or hypertechnical manner to avoid disclosure of information fairly covered by the discovery request, and to do so is subject to appropriate sanctions under subdivision (a). Revised paragraph (4) is divided into three subparagraphs for ease of reference, and in each the phrase after opportunity for hearing is changed to after affording an opportunity to be heard to make clear that the court can consider such questions on written submissions as well as on oral hearings. Subparagraph (A) is revised to cover the situation where information that should have been produced without a motion to compel is produced after the motion is filed but before it is brought on for hearing. The rule also is revised to provide that a party should not be awarded its expenses for filing a motion that could have been avoided by conferring with opposing counsel. Subparagraph (C) is revised to include the provision that formerly was contained in subdivision (a)(2) and to include the same requirement of an opportunity to be heard that is specified in subparagraphs (A) and (B). Subdivision (c) Paragraph (1) prevents a party from using as evidence any witnesses or information that, without substantial justification, has not been disclosed as required by Rules 26(a) and 26(e)(1). This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56. As disclosure of evidence offered solely for impeachment purposes is not required under those rules, this preclusion sanction likewise does not apply to that evidence. Limiting the automatic sanction to violations without substantial justification, coupled with the exception for violations that are harmless, is needed to avoid unduly harsh penalties in a variety of situations: e.g Preclusion of evidence is not an effective incentive to compel disclosure of information that, being supportive of the position of the opposing party, might advantageously be concealed by the disclosing party. However, the rule provides the court with a wide range of other sanctionssuch as declaring specified facts to be established, preventing contradictory evidence, or, like spoliation of evidence, allowing the jury to be informed of the fact of nondisclosurethat, though not self-executing, can be imposed when found to be warranted after a hearing. The failure to identify a witness or document in a disclosure statement would be admissible under the Federal Rules of Evidence under the same principles that allow a partys interrogatory answers to be offered against it. Subdivision (d) The last sentence of this subdivision is revised to clarify that it is the pendency of a motion for protective order that may be urged as an excuse for a violation of subdivision (d). If a partys motion has been denied, the party cannot argue that its subsequent failure to comply would be justified. In this connection, it should be noted that the filing of a motion under Rule 26(c) is not self-executingthe relief authorized under that rule depends on obtaining the courts order to that effect. Subdivision (g) Committee Notes on Rules2000 Amendment Subdivision (c)(1) see Federal Practice & Procedure The amendment explicitly adds failure to comply with Rule 26(e)(2) as a ground for sanctions under Rule 37(c)(1), including exclusion of withheld materials. The rule provides that this sanction power only applies when the failure to supplement was without substantial justification. Even if the failure was not substantially justified, a party should be allowed to use the material that was not disclosed if the lack of earlier notice was harmless. Shall is replaced by is under the program to conform amended rules to current style conventions when there is no ambiguity. GAP Report Committee Notes on Rules2006 Amendment Subdivision (f) Rule 37(f) applies only to information lost due to the routine operation of an electronic information systemthe ways in which such systems are generally designed, programmed, and implemented to meet the partys technical and business needs. The routine operation of computer systems includes the alteration and overwriting of information, often without the operators specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems. Rule 37(f) applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a partys intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a litigation hold. Among the factors that bear on a partys good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information. Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26(b)(2) depends on the circumstances of each case. One factor is whether the party reasonably believes that the information on such sources is likely to be discoverable and not available from reasonably accessible sources. The protection provided by Rule 37(f) applies only to sanctions under these rules. It does not affect other sources of authority to impose sanctions or rules of professional responsibility. This rule restricts the imposition of sanctions. It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information. Changes Made after Publication and Comment The change to a good-faith standard is accompanied by addition of a provision that permits sanctions for loss of information in good- faith routine operation in exceptional circumstances. This provision recognizes that in some circumstances a court should provide remedies to protect an entirely innocent party requesting discovery against serious prejudice arising from the loss of potentially important information. As published, the rule included an express exception that denied protection if a party violated an order in the action requiring it to preserve electronically stored information. This exception was deleted for fear that it would invite routine applications for preservation orders, and often for overbroad orders. The revised Committee Note observes that violation of an order is an element in determining whether a party acted in good faith. The revised proposal broadens the rules protection by applying to operation of an electronic information system, rather than the partys system. The change protects a party who has contracted with an outside firm to provide electronic information storage, avoiding potential arguments whether the system can be characterized as the partys. The party remains obliged to act in good faith to avoid loss of information in routine operations conducted by the outside firm. The Committee Note is changed to reflect the changes in the rule text. The changes from the published version of the proposed rule text are set out below. [Omitted] Committee Notes on Rules2007 Amendment The language of Rule 37 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Changes Made After Publication and Comment Committee Notes on Rules2013 Amendment Rule 37(b) is amended to conform to amendments made to Rule 45, particularly the addition of Rule 45(f) providing for transfer of a subpoena-related motion to the court where the action is pending. A second sentence is added to Rule 37(b)(1) to deal with contempt of orders entered after such a transfer. The Rule 45(f) transfer provision is explained in the Committee Note to Rule 45. Changes Made After Publication and Comment Committee Notes on Rules2015 Amendment Subdivision (a) Subdivision (e) New Rule 37(e) replaces the 2006 rule. It authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. It therefore forecloses reliance on inherent authority or state law to determine when certain measures should be used. The rule does not affect the validity of an independent tort claim for spoliation if state law applies in a case and authorizes the claim. The new rule applies only to electronically stored information, also the focus of the 2006 rule. It applies only when such information is lost. Because electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere. The new rule applies only if the lost information should have been preserved in the anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it. Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to preserve. The rule does not apply when information is lost before a duty to preserve arises. In applying the rule, a court may need to decide whether and when a duty to preserve arose. Courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant. A variety of events may alert a party to the prospect of litigation. Often these events provide only limited information about that prospective litigation, however, so that the scope of information that should be preserved may remain uncertain. It is important not to be blinded to this reality by hindsight arising from familiarity with an action as it is actually filed. Although the rule focuses on the common-law obligation to preserve in the anticipation or conduct of litigation, courts may sometimes consider whether there was an independent requirement that the lost information be preserved. Such requirements arise from many sourcesstatutes, administrative regulations, an order in another case, or a partys own information-retention protocols. The court should be sensitive, however, to the fact that such independent preservation requirements may be addressed to a wide variety of concerns unrelated to the current litigation. The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation, and the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case. The duty to preserve may in some instances be triggered or clarified by a court order in the case. Preservation orders may become more common, in part because Rules 16(b)(3)(B)(iii) and 26(f)(3)(C) are amended to encourage discovery plans and orders that address preservation. Once litigation has commenced, if the parties cannot reach agreement about preservation issues, promptly seeking judicial guidance about the extent of reasonable preservation may be important. The rule applies only if the information was lost because the party failed to take reasonable steps to preserve the information. Due to the ever-increasing volume of electronically stored information and the multitude of devices that generate such information, perfection in preserving all relevant electronically stored information is often impossible. As under the current rule, the routine, good-faith operation of an electronic information system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information, although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation. This rule recognizes that reasonable steps to preserve suffice; it does not call for perfection. The court should be sensitive to the partys sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation. Because the rule calls only for reasonable steps to preserve, it is inapplicable when the loss of information occurs despite the partys reasonable steps to preserve. For example, the information may not be in the partys control. Or information the party has preserved may be destroyed by events outside the partys controlthe computer room may be flooded, a cloud service may fail, a malign software attack may disrupt a storage system, and so on. Courts may, however, need to assess the extent to which a party knew of and protected against such risks. Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms. It is important that counsel become familiar with their clients information systems and digital dataincluding social mediato address these issues. A party urging that preservation requests are disproportionate may need to provide specifics about these matters in order to enable meaningful discussion of the appropriate preservation regime. When a party fails to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, and the information is lost as a result, Rule 37(e) directs that the initial focus should be on whether the lost information can be restored or replaced through additional discovery. Nothing in the rule limits the courts powers under Rules 16 and 26 to authorize additional discovery. Orders under Rule 26(b)(2)(B) regarding discovery from sources that would ordinarily be considered inaccessible or under Rule 26(c)(1)(B) on allocation of expenses may be pertinent to solving such problems. If the information is restored or replaced, no further measures should be taken. At the same time, it is important to emphasize that efforts to restore or replace lost information through discovery should be proportional to the apparent importance of the lost information to claims or defenses in the litigation. For example, substantial measures should not be employed to restore or replace information that is marginally relevant or duplicative. Subdivision (e)(1) The rule does not place a burden of proving or disproving prejudice on one party or the other. Determining the content of lost information may be a difficult task in some cases, and placing the burden of proving prejudice on the party that did not lose the information may be unfair. In other situations, however, the content of the lost information may be fairly evident, the information may appear to be unimportant, or the abundance of preserved information may appear sufficient to meet the needs of all parties. Requiring the party seeking curative measures to prove prejudice may be reasonable in such situations. The rule leaves judges with discretion to determine how best to assess prejudice in particular cases. Once a finding of prejudice is made, the court is authorized to employ measures no greater than necessary to cure the prejudice. The range of such measures is quite broad if they are necessary for this purpose. There is no all-purpose hierarchy of the severity of various measures; the severity of given measures must be calibrated in terms of their effect on the particular case. But authority to order measures no greater than necessary to cure prejudice does not require the court to adopt measures to cure every possible prejudicial effect. Much is entrusted to the courts discretion. In an appropriate case, it may be that serious measures are necessary to cure prejudice found by the court, such as forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions to which subdivision (e)(2) applies. Care must be taken, however, to ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent to deprive another party of the lost informations use in the litigation. An example of an inappropriate (e)(1) measure might be an order striking pleadings related to, or precluding a party from offering any evidence in support of, the central or only claim or defense in the case. On the other hand, it may be appropriate to exclude a specific item of evidence to offset prejudice caused by failure to preserve other evidence that might contradict the excluded item of evidence. Subdivision (e)(2) Residential Funding Corp. v. DeGeorge Financial Corp. Adverse-inference instructions were developed on the premise that a partys intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence. Negligent or even grossly negligent behavior does not logically support that inference. Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have. The better rule for the negligent or grossly negligent loss of electronically stored information is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction. Similar reasons apply to limiting the courts authority to presume or infer that the lost information was unfavorable to the party who lost it when ruling on a pretrial motion or presiding at a bench trial. Subdivision (e)(2) limits the ability of courts to draw adverse inferences based on the loss of information in these circumstances, permitting them only when a court finds that the information was lost with the intent to prevent its use in litigation. Subdivision (e)(2) applies to jury instructions that permit or require the jury to presume or infer that lost information was unfavorable to the party that lost it. Thus, it covers any instruction that directs or permits the jury to infer from the loss of information that it was in fact unfavorable to the party that lost it. The subdivision does not apply to jury instructions that do not involve such an inference. For example, subdivision (e)(2) would not prohibit a court from allowing the parties to present evidence to the jury concerning the loss and likely relevance of information and instructing the jury that it may consider that evidence, along with all the other evidence in the case, in making its decision. These measures, which would not involve instructing a jury it may draw an adverse inference from loss of information, would be available under subdivision (e)(1) if no greater than necessary to cure prejudice. In addition, subdivision (e)(2) does not limit the discretion of courts to give traditional missing evidence instructions based on a partys failure to present evidence it has in its possession at the time of trial. Subdivision (e)(2) requires a finding that the party acted with the intent to deprive another party of the informations use in the litigation. This finding may be made by the court when ruling on a pretrial motion, when presiding at a bench trial, or when deciding whether to give an adverse inference instruction at trial. If a court were to conclude that the intent finding should be made by a jury, the courts instruction should make clear that the jury may infer from the loss of the information that it was unfavorable to the party that lost it only if the jury first finds that the party acted with the intent to deprive another party of the informations use in the litigation. If the jury does not make this finding, it may not infer from the loss that the information was unfavorable to the party that lost it. Subdivision (e)(2) does not include a requirement that the court find prejudice to the party deprived of the information. This is because the finding of intent required by the subdivision can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of information that would have favored its position. Subdivision (e)(2) does not require any further finding of prejudice. Courts should exercise caution, however, in using the measures specified in (e)(2). Finding an intent to deprive another party of the lost informations use in the litigation does not require a court to adopt any of the measures listed in subdivision (e)(2). The remedy should fit the wrong, and the severe measures authorized by this subdivision should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss. Amendment by Public Law 1980Subd. (f). Pub. L. 96481 Effective Date of 1980 Amendment Amendment by Pub. L. 96481 Oct. 1, 1981 section 504(b)(1)(C) of Title 5 section 2412 of Title 28 Oct. 1, 1981 section 208 of Pub. L. 96481 section 504 of Title 5 TITLE VI. TRIALS Rule 38. Right to a Jury Trial; Demand (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitutionor as provided by a federal statuteis preserved to the parties inviolate. (b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demandwhich may be included in a pleadingno later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d). (c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party maywithin 14 days after being served with the demand or within a shorter time ordered by the courtserve a demand for a jury trial on any other or all factual issues triable by jury. (d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent. (e) Admiralty and Maritime Claims. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h). (As amended Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 This rule provides for the preservation of the constitutional right of trial by jury as directed in the enabling act (act of June 19, 1934 48 Stat. 1064 Trial by Jury and the New Federal Rules of Procedure Rule 81(c) provides for claim for jury trial in removed actions. The right to trial by jury as declared in U.S.C., Title 28,  770 [now 1873] (Trial of issues of fact; by jury; exceptions), and similar statutes, is unaffected by this rule. This rule modifies U.S.C., Title 28, [former]  773 (Trial of issues of fact; by court). Notes of Advisory Committee on Rules1966 Amendment See Note to Rule 9(h), supra. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Language requiring the filing of a jury demand as provided in subdivision (d) is added to subdivision (b) to eliminate an apparent ambiguity between the two subdivisions. For proper scheduling of cases, it is important that jury demands not only be served on other parties, but also be filed with the court. Committee Notes on Rules2007 Amendment The language of Rule 38 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment The times set in the former rule at 10 days have been revised to 14 days. See the Note to Rule 6. Rule 39. Trial by Jury or by the Court (a) When a Demand Is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless: (1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or (2) the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial. (b) When No Demand Is Made. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded. (c) Advisory Jury; Jury Trial by Consent. In an action not triable of right by a jury, the court, on motion or on its own: (1) may try any issue with an advisory jury; or (2) may, with the parties consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the action is against the United States and a federal statute provides for a nonjury trial. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 The provisions for express waiver of jury trial found in U.S.C., Title 28, [former]  773 (Trial of issues of fact; by court) are incorporated in this rule. See rule 38, however, which extends the provisions for waiver of jury. U.S.C., Title 28, [former]  772 (Trial of issues of fact; in equity in patent causes) is unaffected by this rule. When certain of the issues are to be tried by jury and others by the court, the court may determine the sequence in which such issues shall be tried. See Liberty Oil Co. v. Condon Nat. Bank A discretionary power in the courts to send issues of fact to the jury is common in state procedure. Compare Calif.Code Civ.Proc. (Deering, 1937)  592; 1 Colo.Stat.Ann. (1935) Code Civ.Proc., ch. 12,  191; Conn.Gen.Stat. (1930)  5625; 2 Minn.Stat. (Mason, 1927)  9288; 4 Mont.Rev.Codes Ann. (1935)  9327; N.Y.C.P.A. (1937)  430; 2 Ohio Gen.Code Ann. (Page, 1926)  11380; 1 Okla.Stat.Ann. (Harlow, 1931)  351; Utah Rev.Stat.Ann. (1933)  104235; 2 Wash.Rev.Stat.Ann. (Remington, 1932)  315; Wis.Stat. (1935)  270.07. See [former] Equity Rule 23 (Matters Ordinarily Determinable at Law When Arising in Suit in Equity to be Disposed of Therein) and U.S.C., Title 28, [former]  772 (Trial of issues of fact; in equity in patent causes); Colleton Merc. Mfg. Co. v. Savannah River Lumber Co Fed. Res. Bk. of San Francisco v. Idaho Grimm Alfalfa Seed Growers Assn Watt v. Starke Committee Notes on Rules2007 Amendment The language of Rule 39 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 40. Scheduling Cases for Trial  Each court must provide by rule for scheduling trials. The court must give priority to actions entitled to priority by a federal statute. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 U.S.C., Title 28, [former]  769 (Notice of case for trial) is modified. See [former] Equity Rule 56 (On Expiration of Time for Depositions, Case Goes on Trial Calendar). See also [former] Equity Rule 57 (Continuances). For examples of statutes giving precedence, see U.S.C., Title 28,  47 [now 1253, 2101, 2325] (Injunctions as to orders of Interstate Commerce Commission);  380 [now 1253, 2101, 2284] (Injunctions alleged unconstitutionality of state statutes);  380a [now 1253, 2101, 2284] (Same; Constitutionality of federal statute); [former]  768 (Priority of cases where a state is party); Title 15,  28 (Antitrust laws; suits against monopolies expedited); Title 22,  240 (Petition for restoration of property seized as munitions of war, etc.); and Title 49, [former]  44 (Proceedings in equity under interstate commerce laws; expedition of suits). Committee Notes on Rules2007 Amendment The language of Rule 40 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The best methods for scheduling trials depend on local conditions. It is useful to ensure that each district adopts an explicit rule for scheduling trials. It is not useful to limit or dictate the provisions of local rules. Rule 41. Dismissal of Actions (a) Voluntary Dismissal. (1)  By the Plaintiff. (A)  Without a Court Order. (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B)  Effect. (2)  By Court Order; Effect. (b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this ruleexcept one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19operates as an adjudication on the merits. (c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimants voluntary dismissal under Rule 41(a)(1)(A)(i) must be made: (1) before a responsive pleading is served; or (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial. (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) English Rules Under the Judicature Act Provisions regarding dismissal in such statutes as U.S.C., Title 8,  164 [see 1329] (Jurisdiction of district courts in immigration cases) and U.S.C., Title 31,  232 [now 3730] (Liability of persons making false claims against United States; suits) are preserved by paragraph (1). Note to Subdivision (b) Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) The change in Rule 41(a)(1)(i) gives the service of a motion for summary judgment by the adverse party the same effect in preventing unlimited dismissal as was originally given only to the service of an answer. The omission of reference to a motion for summary judgment in the original rule was subject to criticism. 3 Moores Federal Practice The word generally has been stricken from Rule 41(a)(1)(ii) in order to avoid confusion and to conform with the elimination of the necessity for special appearances by original Rule 12(b). Subdivision (b) Young v. United States Gary Theatre Co. v. Columbia Pictures Corporation Bach v. Friden Calculating Machine Co., Inc Cf. Mateas v. Fred Harvey, a Corporation Federal Deposit Insurance Corp. v. Mason Schad v. Twentieth Century-Fox Film Corp Moores Federal Practice The Motion to Dismiss in Non-Jury Cases Notes of Advisory Committee on Rules1963 Amendment Under the present text of the second sentence of this subdivision, the motion for dismissal at the close of the plaintiffs evidence may be made in a case tried to a jury as well as in a case tried without a jury. But, when made in a jury-tried case, this motion overlaps the motion for a directed verdict under Rule 50(a), which is also available in the same situation. It has been held that the standard to be applied in deciding the Rule 41(b) motion at the close of the plaintiffs evidence in a jury-tried case is the same as that used upon a motion for a directed verdict made at the same stage; and, just as the court need not make findings pursuant to Rule 52(a) when it directs a verdict, so in a jury-tried case it may omit these findings in granting the Rule 41(b) motion. See generally OBrien v. Westinghouse Electric Corp As indicated by the discussion in the OBrien Moores Federal Practice cf. Cone v. West Virginia Pulp & Paper Co The first sentence of Rule 41(b), providing for dismissal for failure to prosecute or to comply with the Rules or any order of court, and the general provisions of the last sentence remain applicable in jury as well as nonjury cases. The amendment of the last sentence of Rule 41(b) indicates that a dismissal for lack of an indispensable party does not operate as an adjudication on the merits. Such a dismissal does not bar a new action, for it is based merely on a plaintiffs failure to comply with a precondition requisite to the Courts going forward to determine the merits of his substantive claim. See Costello v. United States Mallow v. Hinde Code Pleading Restatement of Judgments Notes of Advisory Committee on Rules1966 Amendment The terminology is changed to accord with the amendment of Rule 19. See that amended rule and the Advisory Committees Note thereto. Notes of Advisory Committee on Rules1968 Amendment The amendment corrects an inadvertent error in the reference to amended Rule 23. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment Language is deleted that authorized the use of this rule as a means of terminating a non-jury action on the merits when the plaintiff has failed to carry a burden of proof in presenting the plaintiffs case. The device is replaced by the new provisions of Rule 52(c), which authorize entry of judgment against the defendant as well as the plaintiff, and earlier than the close of the case of the party against whom judgment is rendered. A motion to dismiss under Rule 41 on the ground that a plaintiffs evidence is legally insufficient should now be treated as a motion for judgment on partial findings as provided in Rule 52(c). Committee Notes on Rules2007 Amendment The language of Rule 41 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. When Rule 23 was amended in 1966, Rules 23.1 and 23.2 were separated from Rule 23. Rule 41(a)(1) was not then amended to reflect the Rule 23 changes. In 1968 Rule 41(a)(1) was amended to correct the cross-reference to what had become Rule 23(e), but Rules 23.1 and 23.2 were inadvertently overlooked. Rules 23.1 and 23.2 are now added to the list of exceptions in Rule 41(a)(1)(A). This change does not affect established meaning. Rule 23.2 explicitly incorporates Rule 23(e), and thus was already absorbed directly into the exceptions in Rule 41(a)(1). Rule 23.1 requires court approval of a compromise or dismissal in language parallel to Rule 23(e) and thus supersedes the apparent right to dismiss by notice of dismissal. Rule 42. Consolidation; Separate Trials (a) Consolidation. If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. (b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial. (As amended Feb. 28, 1966 July 1, 1966 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Subdivision (a) For comparable statutes dealing with consolidation see Ark.Dig.Stat. (Crawford & Moses, 1921)  1081; Calif.Code Civ.Proc. (Deering, 1937)  1048; N.M.Stat.Ann. (Courtright, 1929)  105828; N.Y.C.P.A. (1937)  96, 96a, and 97; American Judicature Society, Bulletin XIV (1919) Art.26. For severance or separate trials see Calif.Code Civ.Proc. (Deering, 1937)  1048; N.Y.C.P.A. (1937)  96; American Judicature Society, Bulletin XIV (1919) Art. 3,  2 and Art. 10,  10. See also the third sentence of Equity Rule 29 (DefensesHow Presented) providing for discretionary separate hearing and disposition before trial of pleas in bar or abatement, and see also Rule 12(d) of these rules for preliminary hearings of defenses and objections. For the entry of separate judgments, see Rule 54(b) (Judgment at Various Stages). Notes of Advisory Committee on Rules1966 Amendment In certain suits in admiralty separation for trial of the issues of liability and damages (or of the extent of liability other than damages, such as salvage and general average) has been conducive to expedition and economy, especially because of the statutory right to interlocutory appeal in admiralty cases (which is of course preserved by these Rules). While separation of issues for trial is not to be routinely ordered, it is important that it be encouraged where experience has demonstrated its worth. Cf. Weinstein, Routine Bifurcation of Negligence Trials In cases (including some cases within the admiralty and maritime jurisdiction) in which the parties have a constitutional or statutory right of trial by jury, separation of issues may give rise to problems. See e.g., United Air Lines, Inc. v. Wiener Committee Notes on Rules2007 Amendment The language of Rule 42 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 43. Taking Testimony (a) In Open Court. At trial, the witnesses testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. (b) Affirmation Instead of an Oath. When these rules require an oath, a solemn affirmation suffices. (c) Evidence on a Motion. When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions. (d) Interpreter. The court may appoint an interpreter of its choosing; fix reasonable compensation to be paid from funds provided by law or by one or more parties; and tax the compensation as costs. (As amended Feb. 28, 1966 July 1, 1966 Nov. 20, 1972 Dec. 18, 1972 July 1, 1975 Mar. 2, 1987 Aug. 1, 1987 Apr. 23, 1996 Dec. 1, 1996 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Subdivision (b) Evidence and the New Federal Rules of Civil Procedure Same: 2 Note to Subdivision (b) Wigmore on Evidence et seq. Note to Subdivision (c) Dowagiac v. Lochren Blease v. Garlington Nelson v. United States Unkle v. Wills See Rule 61 for harmless error in either the admission or exclusion of evidence. Note to Subdivision (d) Notes of Advisory Committee on Rules1946 Supplementary Note Regarding Rules 43 and 44 These rules have been criticized and suggested improvements offered by commentators. 1 Wigmore on Evidence The Admissibility of Evidence Under the Federal Rules Boerner v. United States Mosson v. Liberty Fast Freight Co Hartford Accident & Indemnity Co. v. Olivier Anzano v. Metropolitan Life Ins. Co. of New York Franzen v. E. I. DuPont De Nemours & Co Fakouri v. Cadais In re C. & P. Co cf. United States v. Aluminum Co. of America Proposed Amendments to Federal Rules of Civil Procedure Notes of Advisory Committee on Rules1966 Amendment This new subdivision authorizes the court to appoint interpreters (including interpreters for the deaf), to provide for their compensation, and to tax the compensation as costs. Compare proposed subdivision (b) of Rule 28 of the Federal Rules of Criminal Procedure. Notes of Advisory Committee on Rules1972 Amendment Rule 43, entitled Evidence, has heretofore served as the basic rule of evidence for civil cases in federal courts. Its very general provisions are superseded by the detailed provisions of the new Rules of Evidence. The original title and many of the provisions of the rule are, therefore, no longer appropriate. Subdivision (a) Subdivision (b) Subdivision (c) Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1996 Amendment Rule 43(a) is revised to conform to the style conventions adopted for simplifying the present Civil Rules. The only intended changes of meaning are described below. The requirement that testimony be taken orally is deleted. The deletion makes it clear that testimony of a witness may be given in open court by other means if the witness is not able to communicate orally. Writing or sign language are common examples. The development of advanced technology may enable testimony to be given by other means. A witness unable to sign or write by hand may be able to communicate through a computer or similar device. Contemporaneous transmission of testimony from a different location is permitted only on showing good cause in compelling circumstances. The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial. The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place. Contemporaneous transmission may be better than an attempt to reschedule the trial, particularly if there is a risk that otherand perhaps more importantwitnesses might not be available at a later time. Other possible justifications for remote transmission must be approached cautiously. Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena, or of resolving difficulties in scheduling a trial that can be attended by all witnesses. Deposition procedures ensure the opportunity of all parties to be represented while the witness is testifying. An unforeseen need for the testimony of a remote witness that arises during trial, however, may establish good cause and compelling circumstances. Justification is particularly likely if the need arises from the interjection of new issues during trial or from the unexpected inability to present testimony as planned from a different witness. Good cause and compelling circumstances may be established with relative ease if all parties agree that testimony should be presented by transmission. The court is not bound by a stipulation, however, and can insist on live testimony. Rejection of the parties agreement will be influenced, among other factors, by the apparent importance of the testimony in the full context of the trial. A party who could reasonably foresee the circumstances offered to justify transmission of testimony will have special difficulty in showing good cause and the compelling nature of the circumstances. Notice of a desire to transmit testimony from a different location should be given as soon as the reasons are known, to enable other parties to arrange a deposition, or to secure an advance ruling on transmission so as to know whether to prepare to be present with the witness while testifying. No attempt is made to specify the means of transmission that may be used. Audio transmission without video images may be sufficient in some circumstances, particularly as to less important testimony. Video transmission ordinarily should be preferred when the cost is reasonable in relation to the matters in dispute, the means of the parties, and the circumstances that justify transmission. Transmission that merely produces the equivalent of a written statement ordinarily should not be used. Safeguards must be adopted that ensure accurate identification of the witness and that protect against influence by persons present with the witness. Accurate transmission likewise must be assured. Other safeguards should be employed to ensure that advance notice is given to all parties of foreseeable circumstances that may lead the proponent to offer testimony by transmission. Advance notice is important to protect the opportunity to argue for attendance of the witness at trial. Advance notice also ensures an opportunity to depose the witness, perhaps by video record, as a means of supplementing transmitted testimony. Committee Notes on Rules2007 Amendment The language of Rule 43 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.  References in Text The Federal Rules of Evidence, referred to in subd. (a), are set out in this Appendix. Effective Date of Amendments Proposed November 20, 1972 December 18, 1972 Amendments of this rule embraced by orders entered by the Supreme Court of the United States on November 20, 1972 December 18, 1972 January 2, 1975 section 3 of Pub. L. 93595 Jan. 2, 1975 88 Stat. 1959 section 2074 of this title Rule 44. Proving an Official Record (a) Means of Proving. (1)  Domestic Record. (A) an official publication of the record; or (B) a copy attested by the officer with legal custody of the recordor by the officers deputyand accompanied by a certificate that the officer has custody. The certificate must be made under seal: (i) by a judge of a court of record in the district or political subdivision where the record is kept; or (ii) by any public officer with a seal of office and with official duties in the district or political subdivision where the record is kept. (2)  Foreign Record. (A)  In General. (i) an official publication of the record; or (ii) the recordor a copythat is attested by an authorized person and is accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties. (B)  Final Certification of Genuineness. (C)  Other Means of Proof. (i) admit an attested copy without final certification; or (ii) permit the record to be evidenced by an attested summary with or without a final certification. (b) Lack of a Record. A written statement that a diligent search of designated records revealed no record or entry of a specified tenor is admissible as evidence that the records contain no such record or entry. For domestic records, the statement must be authenticated under Rule 44(a)(1). For foreign records, the statement must comply with (a)(2)(C)(ii). (c) Other Proof. A party may prove an official recordor an entry or lack of an entry in itby any other method authorized by law. (As amended Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 This rule provides a simple and uniform method of proving public records, and entry or lack of entry therein, in all cases including those specifically provided for by statutes of the United States. Such statutes are not superseded, however, and proof may also be made according to their provisions whenever they differ from this rule. Some of those statutes are: U.S.C., Title 28:  661 [now 1733] (Copies of department or corporation records and papers; admissibility; seal)  662 [now 1733] (Same; in office of General Counsel of the Treasury)  663 [now 1733] (Instruments and papers of Comptroller of Currency; admissibility)  664 [now 1733] (Organization certificates of national banks; admissibility)  665 [now 1733] (Transcripts from books of Treasury in suits against delinquents; admissibility)  666 [now 1733] (Same; certificate by Secretary or Assistant Secretary)  670 [now 1743] (Admissibility of copies of statements of demands by Post Office Department)  671 [now 1733] (Admissibility of copies of post office records and statement of accounts)  672 [former] (Admissibility of copies of records in General Land Office)  673 [now 1744] (Admissibility of copies of records, and so forth, of Patent Office)  674 [now 1745] (Copies of foreign letters patent as prima facie evidence)  675 [former] (Copies of specifications and drawings of patents admissible)  676 [now 1736] (Extracts from Journals of Congress admissible when injunction of secrecy removed)  677 [now 1740] (Copies of records in offices of United States consuls admissible)  678 [former] (Books and papers in certain district courts)  679 [former] (Records in clerks offices, western district of North Carolina)  680 [former] (Records in clerks offices of former district of California)  681 [now 1734] (Original records lost or destroyed; certified copy admissible)  682 [now 1734] (Same; when certified copy not obtainable)  685 [now 1735] (Same; certified copy of official papers)  687 [now 1738] (Authentication of legislative acts; proof of judicial proceedings of State)  688 [now 1739] (Proofs of records in offices not pertaining to courts)  689 [now 1742] (Copies of foreign records relating to land titles)  695 [now 1732] (Writings and records made in regular course of business; admissibility)  695e [now 1741] (Foreign documents on record in public offices; certification) U.S.C., Title 1:  30 [now 112] (Statutes at large; contents; admissibility in evidence)  30a [now 113] (Little and Browns edition of laws and treaties competent evidence of Acts of Congress)  54 [now 204] (Codes and supplements as establishing prima facie the laws of United States and District of Columbia, etc.)  55 [now 208] (Copies of supplements to Code of Laws of United States and of District of Columbia Code and supplements; conclusive evidence of original) U.S.C., Title 5:  490 [former] (Records of Department of Interior; authenticated copies as evidence) U.S.C., Title 6:  7 [now Title 31,  9306] (Surety Companies as sureties; appointment of agents; service of process) U.S.C., Title 8:  9a [see 1435(c)] (Citizenship of children of persons naturalized under certain laws; repatriation of native-born women married to aliens prior to September 22, 1922  356 [see 1443] (Regulations for execution of naturalization laws; certified copies of papers as evidence)  399b(d) [see 1443] (Certifications of naturalization records; authorization; admissibility as evidence) U.S.C., Title 11:  44(d), (e), (f), (g) [former] (Bankruptcy court proceedings and orders as evidence)  204 [former] (Extensions extended, etc.; evidence of confirmation)  207(j) [former] (Corporate reorganizations; certified copy of decree as evidence) U.S.C., Title 15:  127 (Trade-mark records in Patent Office; copies as evidence) U.S.C., Title 20:  52 (Smithsonian Institution; evidence of title to site and buildings) U.S.C., Title 25:  6 (Bureau of Indian Affairs; seal; authenticated and certified documents; evidence) U.S.C., Title 31:  46 [now 704] (Laws governing General Accounting Office; copies of books, records, etc., thereof as evidence) U.S.C., Title 38:  11g [see 302] (Seal of Veterans Administration; authentication of copies of records) U.S.C., Title 40:  238 [former] (National Archives; seal; reproduction of archives; fee; admissibility in evidence of reproductions)  270c [now 3133(a)] (Bonds of contractors for public works; right of person furnishing labor or material to copy of bond) U.S.C., Title 43:  5759 (Copies of land surveys, etc., in certain states and districts admissible as evidence)  83 (General Land Office registers and receivers; transcripts of records as evidence) U.S.C., Title 46:  823 [former] (Records of Maritime Commission; copies; publication of reports; evidence) U.S.C., Title 47:  154(m) (Federal Communications Commission; copies of reports and decisions as evidence)  412 (Documents filed with Federal Communications Commission as public records; prima facie evidence; confidential records) U.S.C., Title 49:  14(3) [see 706] (Interstate Commerce Commission reports and decisions; printing and distribution of copies)  16(13) [former] (Copies of schedules, tariffs, etc., filed with Interstate Commerce Commission as evidence)  19a(i) [former] (Valuation of property of carriers by Interstate Commerce Commission; final published valuations as evidence) Notes of Advisory Committee on Rules1946 Supplementary Note Regarding Rules 43 and 44 For supplementary note of Advisory Committee on this rule, see note under rule 43. Notes of Advisory Committee on Rules1966 Amendment Subdivision (a)(1) Cf. Banco de Espana v. Federal Reserve Bank Subdivision (a)(2) United States v. Aluminum Co. of America The rest of subdivision (a)(2) aims to provide greater clarity, efficiency, and flexibility in the procedure for authenticating copies of foreign official records. The reference to attestation by the officer having the legal custody of the record, hitherto appearing in Rule 44, has been found inappropriate for official records kept in foreign countries where the assumed relation between custody and the authority to attest does not obtain. See 2B Barron & Holtzoff, Federal Practice & Procedure Under Rule 44 a United States foreign service officer has been called on to certify to the authority of the foreign official attesting the copy as well as the genuineness of his signature and his official position. See Schlesinger, Comparative Law International Aspects of Federal Civil Procedure New York Life Ins. Co. v. Aronson The final certification (a term used in contradistinction to the certificates prepared by the foreign officials in a chain) relates to the incumbency and genuineness of signature of the foreign official who attested the copy of the record or, where the chain-certificate method is used, of a foreign official whose certificate appears in the chain, whether that certificate is the last in the chain or not. A final certification may be prepared on the basis of material on file in the consulate or any other satisfactory information. Although the amended rule will generally facilitate proof of foreign official records, it is recognized that in some situations it may be difficult or even impossible to satisfy the basic requirements of the rule. There may be no United States consul in a particular foreign country; the foreign officials may not cooperate, peculiarities may exist or arise hereafter in the law or practice of a foreign country. See United States v. Grabina International Judicial Assistance: Procedural Chaos and a Program for Reform Subdivision (b) Subdivision (c) May 8, 1878 20 Stat. 725 Fakouri v. Cadais Moores Federal Practice Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment The amendment to paragraph (a)(1) strikes the references to specific territories, two of which are no longer subject to the jurisdiction of the United States, and adds a generic term to describe governments having a relationship with the United States such that their official records should be treated as domestic records. The amendment to paragraph (a)(2) adds a sentence to dispense with the final certification by diplomatic officers when the United States and the foreign country where the record is located are parties to a treaty or convention that abolishes or displaces the requirement. In that event the treaty or convention is to be followed. This changes the former procedure for authenticating foreign official records only with respect to records from countries that are parties to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Moreover, it does not affect the former practice of attesting the records, but only changes the method of certifying the attestation. The Hague Public Documents Convention provides that the requirement of a final certification is abolished and replaced with a model apostille apostille apostille apostille apostille apostilles apostille The United States and the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents Committee Notes on Rules2007 Amendment The language of Rule 44 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 44.1. Determining Foreign Law  A party who intends to raise an issue about a foreign countrys law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The courts determination must be treated as a ruling on a question of law. (As added Feb. 28, 1966 July 1, 1966 Nov. 20, 1972 July 1, 1975 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1966 Rule 44.1 is added by amendment to furnish Federal courts with a uniform and effective procedure for raising and determining an issue concerning the law of a foreign country. To avoid unfair surprise, the first sentence compare Siegelman v. Cunard White Star, Ltd Pedersen v. United States with Harrison v. United Fruit Co The new rule does not attempt to set any definite limit on the partys time for giving the notice of an issue of foreign law; in some cases the issue may not become apparent until the trial and notice then given may still be reasonable. The stage which the case has reached at the time of the notice, the reason proffered by the party for his failure to give earlier notice, and the importance to the case as a whole of the issue of foreign law sought to be raised, are among the factors which the court should consider in deciding a question of the reasonableness of a notice. If notice is given by one party it need not be repeated by any other and serves as a basis for presentation of material on the foreign law by all parties. The second sentence Proving the Law of Foreign Countries Sept. 1, 1963 In further recognition of the peculiar nature of the issue of foreign law, the new rule provides that in determining this law the court is not limited by material presented by the parties; it may engage in its own research and consider any relevant material thus found. The court may have at its disposal better foreign law materials than counsel have presented, or may wish to reexamine and amplify material that has been presented by counsel in partisan fashion or in insufficient detail. On the other hand, the court is free to insist on a complete presentation by counsel. There is no requirement that the court give formal notice to the parties of its intention to engage in its own research on an issue of foreign law which has been raised by them, or of its intention to raise and determine independently an issue not raised by them. Ordinarily the court should inform the parties of material it has found diverging substantially from the material which they have presented; and in general the court should give the parties an opportunity to analyze and counter new points upon which it proposes to rely. See Schlesinger, Comparative Law A Trial Judges Freedom and Responsibility Siegelman v. Cunard White Star, Ltd., supra The new rule refrains from imposing an obligation on the court to take judicial notice of foreign law because this would put an extreme burden on the court in many cases; and it avoids use of the concept of judicial notice in any form because of the uncertain meaning of that concept as applied to foreign law. See, e.g., Stern, Foreign Law in the Courts: Judicial Notice and Proof Under the third sentence Cf. Uniform Judicial Notice of Foreign Law Act The new rule parallels Article IV of the Uniform Interstate and International Procedure Act, approved by the Commissioners on Uniform State Laws in 1962, except that section 4.03 of Article IV states that [t]he court, not the jury shall determine foreign law. The new rule does not address itself to this problem, since the Rules refrain from allocating functions as between the court and the jury. See Rule 38(a). It has long been thought, however, that the jury is not the appropriate body to determine issues of foreign law. See, e.g., Story, Conflict of Laws Evidence Evidence Sept. 1, 1963 loc. cit Janson v. Swedish American Line Bank of Nova Scotia v. San Miguel Liechti v. Roche Daniel Lumber Co. v. Empresas Hondurenas, S.A Notes of Advisory Committee on Rules1972 Amendment Since the purpose of the provision is to free the judge, in determining foreign law, from any restrictions imposed by evidence rules, a general reference to the Rules of Evidence is appropriate and is made. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 44.1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.  References in Text The Federal Rules of Evidence, referred to in text, are set out in this Appendix. Effective Date of Amendment Proposed November 20, 1972 Amendment of this rule embraced by the order entered by the Supreme Court of the United States on November 20, 1972 January 2, 1973 section 3 of Pub. L. 93595 Jan. 2, 1975 88 Stat. 1959 section 2074 of this title Rule 45. Subpoena (a) In General. (1)  Form and Contents. (A)  RequirementsIn General. (i) state the court from which it issued; (ii) state the title of the action and its civil-action number; (iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that persons possession, custody, or control; or permit the inspection of premises; and (iv) set out the text of Rule 45(d) and (e). (B)  Command to Attend a DepositionNotice of the Recording Method. (C)  Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically Stored Information. (D)  Command to Produce; Included Obligations. (2)  Issuing Court. (3)  Issued by Whom. (4)  Notice to Other Parties Before Service. (b) Service. (1)  By Whom and How; Tendering Fees. (2)  Service in the United States. (3)  Service in a Foreign Country. (4)  Proof of Service. (c) Place of Compliance. (1)  For a Trial, Hearing, or Deposition. (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a partys officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (2)  For Other Discovery. (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1)  Avoiding Undue Burden or Expense; Sanctions. (2)  Command to Produce Materials or Permit Inspection. (A)  Appearance Not Required. (B)  Objections. (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a partys officer from significant expense resulting from compliance. (3)  Quashing or Modifying a Subpoena. (A)  When Required. (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B)  When Permitted. (i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained experts opinion or information that does not describe specific occurrences in dispute and results from the experts study that was not requested by a party. (C)  Specifying Conditions as an Alternative. (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (1)  Producing Documents or Electronically Stored Information. (A)  Documents. (B)  Form for Producing Electronically Stored Information Not Specified. (C)  Electronically Stored Information Produced in Only One Form. (D)  Inaccessible Electronically Stored Information. (2)  Claiming Privilege or Protection. (A)  Information Withheld. (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B)  Information Produced. (f) Transferring a Subpoena-Related Motion. When the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances. Then, if the attorney for a person subject to a subpoena is authorized to practice in the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the issuing court. To enforce its order, the issuing court may transfer the order to the court where the motion was made. (g) Contempt. The court for the district where compliance is requiredand also, after a motion is transferred, the issuing courtmay hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Mar. 30, 1970 July 1, 1970 Apr. 29, 1980 Aug. 1, 1980 Apr. 29, 1985 Aug. 1, 1985 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 25, 2005 Dec. 1, 2005 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 16, 2013 Dec. 1, 2013  Notes of Advisory Committee on Rules1937 This rule applies to subpoenas ad testificandum duces tecum U.S.C., Title 7,  222 and 511n (Secretary of Agriculture) U.S.C., Title 15,  49 (Federal Trade Commission) U.S.C., Title 15,  77v(b), 78u(c), 79r(d) (Securities and Exchange Commission) U.S.C., Title 16,  797(g) and 825f (Federal Power Commission) U.S.C., Title 19,  1333(b) (Tariff Commission) U.S.C., Title 22,  268, 270d and 270e (International Commissions, etc.) U.S.C., Title 26,  614, 619(b) [see 7456] (Board of Tax Appeals) U.S.C., Title 26,  1523(a) [see 7608] (Internal Revenue Officers) U.S.C., Title 29,  161 (Labor Relations Board) U.S.C., Title 33,  506 (Secretary of Army) U.S.C., Title 35,  5456 [now 24] (Patent Office proceedings) U.S.C., Title 38, [former]  133 (Veterans Administration) U.S.C., Title 41,  39 (Secretary of Labor) U.S.C., Title 45,  157 Third. (h) (Board of Arbitration under Railway Labor Act) U.S.C., Title 45,  222(b) (Investigation Commission under Railroad Retirement Act of 1935) U.S.C., Title 46 [App.],  1124(b) (Maritime Commission) U.S.C., Title 47,  409(c) and (d) (Federal Communications Commission) U.S.C., Title 49,  12(2) and (3) [see 721(c) and 13301(c)] (Interstate Commerce Commission) U.S.C., Title 49,  173a [see 46104] (Secretary of Commerce) Note to Subdivisions (a) and (b) duces tecum Note to Subdivision (c) For statutes governing fees and mileage of witnesses see: U.S.C., Title 28:  600a [now 1871] (Per diem; mileage)  600c [now 1821, 1825] (Amount per diem and mileage for witnesses; subsistence)  600d [former] (Fees and mileage in certain states)  601 [former] (Witnesses; fees; enumeration)  602 [now 1824] (Fees and mileage of jurors and witnesses)  603 [see Title 5,  5515, 5537] (No officer of court to have witness fees) Note to Subdivision (d) Henning v. Boyle duces tecum dedimus potestatem; duces tecum dedimus potestatem; Note to Subdivision (e) U.S.C., Title 15:  23 (Suits by United States; subpoenas for witnesses) (under antitrust laws). U.S.C., Title 38:  445 [now 1984] (Actions on claims; jurisdiction; parties; procedure; limitation; witnesses; definitions) (Veterans; insurance contracts). The second paragraph continues the present procedure applicable to certain witnesses who are in foreign countries. See U.S.C., Title 28,  711 [now 1783] (Letters rogatory to take testimony of witness, addressed to court of foreign country; failure of witness to appear; subpoena) and 713 [now 1783] (Service of subpoena on witness in foreign country). Note to Subdivision (f) Notes of Advisory Committee on Rules1946 Amendment Subdivision (b) The insertion of the words or modify in clause (1) affords desirable flexibility. Subdivision (d) Application of Zenith Radio Corp Fox v. House United States of America for the Use of Tilo Roofing Co., Inc. v. J. Slotnik Co The changes in subdivision (d)(2) give the court the same power in the case of residents of the district as is conferred in the case of non-residents, and permit the court to fix a place for attendance which may be more convenient and accessible for the parties than that specified in the rule. Notes of Advisory Committee on Rules1948 Amendment The amendment substitutes the present statutory reference. Notes of Advisory Committee on Rules1970 Amendment At present, when a subpoena duces tecum is issued to a deponent, he is required to produce the listed materials at the deposition, but is under no clear compulsion to permit their inspection and copying. This results in confusion and uncertainty before the time the deposition is taken, with no mechanism provided whereby the court can resolve the matter. Rule 45(d)(1), as revised, makes clear that the subpoena authorizes inspection and copying of the materials produced. The deponent is afforded full protection since he can object, thereby forcing the party serving the subpoena to obtain a court order if he wishes to inspect and copy. The procedure is thus analogous to that provided in Rule 34. The changed references to other rules conform to changes made in those rules. The deletion of words in the clause describing the proper scope of the subpoena conforms to a change made in the language of Rule 34. The reference to Rule 26(b) is unchanged but encompasses new matter in that subdivision. The changes make it clear that the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules. Notes of Advisory Committee on Rules1980 Amendment Subdivision (d)(1) Subdivision (e)(1) Notes of Advisory Committee on Rules1985 Amendment Present Rule 45(d)(2) has two sentences setting forth the territorial scope of deposition subpoenas. The first sentence is directed to depositions taken in the judicial district in which the deponent resides; the second sentence addresses situations in which the deponent is not a resident of the district in which the deposition is to take place. The Rule, as currently constituted, creates anomalous situations that often cause logistical problems in conducting litigation. The first sentence of the present Rule states that a deponent may be required to attend only in the county or Under todays conditions there is no sound reason for distinguishing between residents of the district or county in which a deposition is to be taken and nonresidents, and the Rule is amended to provide that any person may be subpoenaed to attend a deposition within a specified radius from that persons residence, place of business, or where the person was served. The 40-mile radius has been increased to 100 miles. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment Purposes of Revision. The purposes of this revision are (1) to clarify and enlarge the protections afforded persons who are required to assist the court by giving information or evidence; (2) to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties; (3) to facilitate service of subpoenas for depositions or productions of evidence at places distant from the district in which an action is proceeding; (4) to enable the court to compel a witness found within the state in which the court sits to attend trial; (5) to clarify the organization of the text of the rule. Subdivision (a) First, Paragraph (a)(3) modifies the requirement that a subpoena be issued by the clerk of court. Provision is made for the issuance of subpoenas by attorneys as officers of the court. This revision perhaps culminates an evolution. Subpoenas were long issued by specific order of the court. As this became a burden to the court, general orders were made authorizing clerks to issue subpoenas on request. Since 1948, they have been issued in blank by the clerk of any federal court to any lawyer, the clerk serving as stationer to the bar. In allowing counsel to issue the subpoena, the rule is merely a recognition of present reality. Although the subpoena is in a sense the command of the attorney who completes the form, defiance of a subpoena is nevertheless an act in defiance of a court order and exposes the defiant witness to contempt sanctions. In ICC v. Brimson CAB v. Hermann NLRB v. Warren Co Waste Conversion, Inc. v. Rollins Environmental Services (NJ), Inc Fisher v. Marubent Cotton Corp Young v. United States ex rel Vuitton et Fils S.A Necessarily accompanying the evolution of this power of the lawyer as officer of the court is the development of increased responsibility and liability for the misuse of this power. The latter development is reflected in the provisions of subdivision (c) of this rule, and also in the requirement imposed by paragraph (3) of this subdivision that the attorney issuing a subpoena must sign it. Second, Paragraph (a)(3) authorizes attorneys in distant districts to serve as officers authorized to issue commands in the name of the court. Any attorney permitted to represent a client in a federal court, even one admitted pro hac vice, has the same authority as a clerk to issue a subpoena from any federal court for the district in which the subpoena is served and enforced. In authorizing attorneys to issue subpoenas from distant courts, the amended rule effectively authorizes service of a subpoena anywhere in the United States by an attorney representing any party. This change is intended to ease the administrative burdens of inter-district law practice. The former rule resulted in delay and expense caused by the need to secure forms from clerks offices some distance from the place at which the action proceeds. This change does not enlarge the burden on the witness. Pursuant to Paragraph (a)(2), a subpoena for a deposition must still issue from the court in which the deposition or production would be compelled. Accordingly, a motion to quash such a subpoena if it overbears the limits of the subpoena power must, as under the previous rule, be presented to the court for the district in which the deposition would occur. Likewise, the court in whose name the subpoena is issued is responsible for its enforcement. Third, in order to relieve attorneys of the need to secure an appropriate seal to affix to a subpoena issued as an officer of a distant court, the requirement that a subpoena be under seal is abolished by the provisions of Paragraph (a)(1). Fourth, Paragraph (a)(1) authorizes the issuance of a subpoena to compel a non-party to produce evidence independent of any deposition. This revision spares the necessity of a deposition of the custodian of evidentiary material required to be produced. A party seeking additional production from a person subject to such a subpoena may serve an additional subpoena requiring additional production at the same time and place. Fifth, Paragraph (a)(2) makes clear that the person subject to the subpoena is required to produce materials in that persons control whether or not the materials are located within the district or within the territory within which the subpoena can be served. The non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34. Sixth, Paragraph (a)(1) requires that the subpoena include a statement of the rights and duties of witnesses by setting forth in full the text of the new subdivisions (c) and (d). Seventh, the revised rule authorizes the issuance of a subpoena to compel the inspection of premises in the possession of a non-party. Rule 34 has authorized such inspections of premises in the possession of a party as discovery compelled under Rule 37, but prior practice required an independent proceeding to secure such relief ancillary to the federal proceeding when the premises were not in the possession of a party. Practice in some states has long authorized such use of a subpoena for this purpose without apparent adverse consequence. Subdivision (b) The reference to the United States marshal and deputy marshal is deleted because of the infrequency of the use of these officers for this purpose. Inasmuch as these officers meet the age requirement, they may still be used if available. A provision requiring service of prior notice pursuant to Rule 5 of compulsory pretrial production or inspection has been added to paragraph (b)(1). The purpose of such notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things. Such additional notice is not needed with respect to a deposition because of the requirement of notice imposed by Rule 30 or 31. But when production or inspection is sought independently of a deposition, other parties may need notice in order to monitor the discovery and in order to pursue access to any information that may or should be produced. Paragraph (b)(2) retains language formerly set forth in subdivision (e) and extends its application to subpoenas for depositions or production. Paragraph (b)(3) retains language formerly set forth in paragraph (d)(1) and extends its applications to subpoenas for trial or hearing or production. Subdivision (c) Paragraph (c)(1) gives specific application to the principle stated in Rule 26(g) and specifies liability for earnings lost by a non-party witness as a result of a misuse of the subpoena. No change in existing law is thereby effected. Abuse of a subpoena is an actionable tort, Board of Ed. v. Farmingdale Classroom Teach. Assn Paragraph (c)(2) retains language from the former subdivision (b) and paragraph (d)(1). The 10-day period for response to a subpoena is extended to 14 days to avoid the complex calculations associated with short time periods under Rule 6 and to allow a bit more time for such objections to be made. A non-party required to produce documents or materials is protected against significant expense resulting from involuntary assistance to the court. This provision applies, for example, to a non-party required to provide a list of class members. The court is not required to fix the costs in advance of production, although this will often be the most satisfactory accommodation to protect the party seeking discovery from excessive costs. In some instances, it may be preferable to leave uncertain costs to be determined after the materials have been produced, provided that the risk of uncertainty is fully disclosed to the discovering party. See, e.g., United States v. Columbia Broadcasting Systems, Inc Paragraph (c)(3) explicitly authorizes the quashing of a subpoena as a means of protecting a witness from misuse of the subpoena power. It replaces and enlarges on the former subdivision (b) of this rule and tracks the provisions of Rule 26(c). While largely repetitious, this rule is addressed to the witness who may read it on the subpoena, where it is required to be printed by the revised paragraph (a)(1) of this rule. Subparagraph (c)(3)(A) identifies those circumstances in which a subpoena must be quashed or modified. It restates the former provisions with respect to the limits of mandatory travel that are set forth in the former paragraphs (d)(2) and (e)(1), with one important change. Under the revised rule, a federal court can compel a witness to come from any place in the state to attend trial, whether or not the local state law so provides. This extension is subject to the qualification provided in the next paragraph, which authorizes the court to condition enforcement of a subpoena compelling a non-party witness to bear substantial expense to attend trial. The traveling non-party witness may be entitled to reasonable compensation for the time and effort entailed. Clause (c)(3)(A)(iv) requires the court to protect all persons from undue burden imposed by the use of the subpoena power. Illustratively, it might be unduly burdensome to compel an adversary to attend trial as a witness if the adversary is known to have no personal knowledge of matters in dispute, especially so if the adversary would be required to incur substantial travel burdens. Subparagraph (c)(3)(B) identifies circumstances in which a subpoena should be quashed unless the party serving the subpoena shows a substantial need and the court can devise an appropriate accommodation to protect the interests of the witness. An additional circumstance in which such action is required is a request for costly production of documents; that situation is expressly governed by subparagraph (b)(2)(B). Clause (c)(3)(B)(i) authorizes the court to quash, modify, or condition a subpoena to protect the person subject to or affected by the subpoena from unnecessary or unduly harmful disclosures of confidential information. It corresponds to Rule 26(c)(7). Clause (c)(3)(B)(ii) provides appropriate protection for the intellectual property of the non-party witness; it does not apply to the expert retained by a party, whose information is subject to the provisions of Rule 26(b)(4). A growing problem has been the use of subpoenas to compel the giving of evidence and information by unretained experts. Experts are not exempt from the duty to give evidence, even if they cannot be compelled to prepare themselves to give effective testimony, e.g., Carter-Wallace, Inc. v. Otte Compelling the Expert Witness: Fairness and Utility Under the Federal Rules of Civil Procedure Discovery and Testimony of Unretained Experts United States v. Columbia Broadcasting Systems Inc Wright v. Jeep Corporation As stated in Kaufman v. Edelstein Clause (c)(3)(B)(iii) protects non-party witnesses who may be burdened to perform the duty to travel in order to provide testimony at trial. The provision requires the court to condition a subpoena requiring travel of more than 100 miles on reasonable compensation. Subdivision (d) Paragraph (d)(2) is new and corresponds to the new Rule 26(b)(5). Its purpose is to provide a party whose discovery is constrained by a claim of privilege or work product protection with information sufficient to evaluate such a claim and to resist if it seems unjustified. The person claiming a privilege or protection cannot decide the limits of that partys own entitlement. A party receiving a discovery request who asserts a privilege or protection but fails to disclose that claim is at risk of waiving the privilege or protection. A person claiming a privilege or protection who fails to provide adequate information about the privilege or protection claim to the party seeking the information is subject to an order to show cause why the person should not be held in contempt under subdivision (e). Motions for such orders and responses to motions are subject to the sanctions provisions of Rules 7 and 11. A person served a subpoena that is too broad may be faced with a burdensome task to provide full information regarding all that persons claims to privilege or work product protection. Such a person is entitled to protection that may be secured through an objection made pursuant to paragraph (c)(2). Subdivision (e) Adequate cause for a failure to obey a subpoena remains undefined. In at least some circumstances, a non-party might be guilty of contempt for refusing to obey a subpoena even though the subpoena manifestly overreaches the appropriate limits of the subpoena power. E.g., Walker v. City of Birmingham Committee Notes on Rules2005 Amendment This amendment closes a small gap in regard to notifying witnesses of the manner for recording a deposition. A deposition subpoena must state the method for recording the testimony. Rule 30(b)(2) directs that the party noticing a deposition state in the notice the manner for recording the testimony, but the notice need not be served on the deponent. The deponent learns of the recording method only if the deponent is a party or is informed by a party. Rule 30(b)(3) permits another party to designate an additional method of recording with prior notice to the deponent and the other parties. The deponent thus has notice of the recording method when an additional method is designated. This amendment completes the notice provisions to ensure that a nonparty deponent has notice of the recording method when the recording method is described only in the deposition notice. A subpoenaed witness does not have a right to refuse to proceed with a deposition due to objections to the manner of recording. But under rare circumstances, a nonparty witness might have a ground for seeking a protective order under Rule 26(c) with regard to the manner of recording or the use of the deposition if recorded in a certain manner. Should such a witness not learn of the manner of recording until the deposition begins, undesirable delay or complication might result. Advance notice of the recording method affords an opportunity to raise such protective issues. Other changes are made to conform Rule 45(a)(2) to current style conventions. Changes Made After Publication and Comment Committee Notes on Rules2006 Amendment Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information. Rule 34 is amended to provide in greater detail for the production of electronically stored information. Rule 45(a)(1)(C) is amended to recognize that electronically stored information, as defined in Rule 34(a), can also be sought by subpoena. Like Rule 34(b), Rule 45(a)(1) is amended to provide that the subpoena can designate a form or forms for production of electronic data. Rule 45(c)(2) is amended, like Rule 34(b), to authorize the person served with a subpoena to object to the requested form or forms. In addition, as under Rule 34(b), Rule 45(d)(1)(B) is amended to provide that if the subpoena does not specify the form or forms for electronically stored information, the person served with the subpoena must produce electronically stored information in a form or forms in which it is usually maintained or in a form or forms that are reasonably usable. Rule 45(d)(1)(C) is added to provide that the person producing electronically stored information should not have to produce the same information in more than one form unless so ordered by the court for good cause. As with discovery of electronically stored information from parties, complying with a subpoena for such information may impose burdens on the responding person. Rule 45(c) provides protection against undue impositions on nonparties. For example, Rule 45(c)(1) directs that a party serving a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena, and Rule 45(c)(2)(B) permits the person served with the subpoena to object to it and directs that an order requiring compliance shall protect a person who is neither a party nor a partys officer from significant expense resulting from compliance. Rule 45(d)(1)(D) is added to provide that the responding person need not provide discovery of electronically stored information from sources the party identifies as not reasonably accessible, unless the court orders such discovery for good cause, considering the limitations of Rule 26(b)(2)(C), on terms that protect a nonparty against significant expense. A parallel provision is added to Rule 26(b)(2). Rule 45(a)(1)(B) is also amended, as is Rule 34(a), to provide that a subpoena is available to permit testing and sampling as well as inspection and copying. As in Rule 34, this change recognizes that on occasion the opportunity to perform testing or sampling may be important, both for documents and for electronically stored information. Because testing or sampling may present particular issues of burden or intrusion for the person served with the subpoena, however, the protective provisions of Rule 45(c) should be enforced with vigilance when such demands are made. Inspection or testing of certain types of electronically stored information or of a persons electronic information system may raise issues of confidentiality or privacy. The addition of sampling and testing to Rule 45(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a persons electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems. Rule 45(d)(2) is amended, as is Rule 26(b)(5), to add a procedure for assertion of privilege or of protection as trial-preparation materials after production. The receiving party may submit the information to the court for resolution of the privilege claim, as under Rule 26(b)(5)(B). Other minor amendments are made to conform the rule to the changes described above. Changes Made After Publication and Comment The changes from the published proposed amendment are shown below. [Omitted] Committee Notes on Rules2007 Amendment The language of Rule 45 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The reference to discovery of books in former Rule 45(a)(1)(C) was deleted to achieve consistent expression throughout the discovery rules. Books remain a proper subject of discovery. Former Rule 45(b)(1) required prior notice to each party of any commanded production of documents and things or inspection of premises. Courts have agreed that notice must be given prior to the return date, and have tended to converge on an interpretation that requires notice to the parties before the subpoena is served on the person commanded to produce or permit inspection. That interpretation is adopted in amended Rule 45(b)(1) to give clear notice of general present practice. The language of former Rule 45(d)(2) addressing the manner of asserting privilege is replaced by adopting the wording of Rule 26(b)(5). The same meaning is better expressed in the same words. Changes Made After Publication and Comment Committee Notes on Rules2013 Amendment Rule 45 was extensively amended in 1991. The goal of the present amendments is to clarify and simplify the rule. The amendments recognize the court where the action is pending as the issuing court, permit nationwide service of a subpoena, and collect in a new subdivision (c) the previously scattered provisions regarding place of compliance. These changes resolve a conflict that arose after the 1991 amendment about a courts authority to compel a party or party officer to travel long distances to testify at trial; such testimony may now be required only as specified in new Rule 45(c). In addition, the amendments introduce authority in new Rule 45(f) for the court where compliance is required to transfer a subpoena-related motion to the court where the action is pending on consent of the person subject to the subpoena or in exceptional circumstances. Subdivision (a) In Rule 45(a)(1)(D), person is substituted for party because the subpoena may be directed to a nonparty. Rule 45(a)(4) is added to highlight and slightly modify a notice requirement first included in the rule in 1991. Under the 1991 amendments, Rule 45(b)(1) required prior notice of the service of a documents only subpoena to the other parties. Rule 45(b)(1) was clarified in 2007 to specify that this notice must be served before the subpoena is served on the witness. The Committee has been informed that parties serving subpoenas frequently fail to give the required notice to the other parties. The amendment moves the notice requirement to a new provision in Rule 45(a) and requires that the notice include a copy of the subpoena. The amendments are intended to achieve the original purpose of enabling the other parties to object or to serve a subpoena for additional materials. Parties desiring access to information produced in response to the subpoena will need to follow up with the party serving it or the person served to obtain such access. The rule does not limit the courts authority to order notice of receipt of produced materials or access to them. The party serving the subpoena should in any event make reasonable provision for prompt access. Subdivision (b) Rule 45(b)(2) is amended to provide that a subpoena may be served at any place within the United States, removing the complexities prescribed in prior versions. Subdivision (c) Rule 45(c)(1) addresses a subpoena to testify at a trial, hearing, or deposition. Rule 45(c)(1)(A) provides that compliance may be required within 100 miles of where the person subject to the subpoena resides, is employed, or regularly conducts business in person. For parties and party officers, Rule 45(c)(1)(B)(i) provides that compliance may be required anywhere in the state where the person resides, is employed, or regularly conducts business in person. When an order under Rule 43(a) authorizes testimony from a remote location, the witness can be commanded to testify from any place described in Rule 45(c)(1). Under Rule 45(c)(1)(B)(ii), nonparty witnesses can be required to travel more than 100 miles within the state where they reside, are employed, or regularly transact business in person only if they would not, as a result, incur substantial expense. When travel over 100 miles could impose substantial expense on the witness, the party that served the subpoena may pay that expense and the court can condition enforcement of the subpoena on such payment. Because Rule 45(c) directs that compliance may be commanded only as it provides, these amendments resolve a split in interpreting Rule 45s provisions for subpoenaing parties and party officers. Compare In re Vioxx Products Liability Litigation Johnson v. Big Lots Stores, Inc. Depositions of parties, and officers, directors, and managing agents of parties need not involve use of a subpoena. Under Rule 37(d)(1)(A)(i), failure of such a witness whose deposition was properly noticed to appear for the deposition can lead to Rule 37(b) sanctions (including dismissal or default but not contempt) without regard to service of a subpoena and without regard to the geographical limitations on compliance with a subpoena. These amendments do not change that existing law; the courts retain their authority to control the place of party depositions and impose sanctions for failure to appear under Rule 37(b). For other discovery, Rule 45(c)(2) directs that inspection of premises occur at those premises, and that production of documents, tangible things, and electronically stored information may be commanded to occur at a place within 100 miles of where the person subject to the subpoena resides, is employed, or regularly conducts business in person. Under the current rule, parties often agree that production, particularly of electronically stored information, be transmitted by electronic means. Such arrangements facilitate discovery, and nothing in these amendments limits the ability of parties to make such arrangements. Rule 45(d)(3)(A)(ii) directs the court to quash any subpoena that purports to compel compliance beyond the geographical limits specified in Rule 45(c). Subdivision (d) Subdivision (f) Subpoenas are essential to obtain discovery from nonparties. To protect local nonparties, local resolution of disputes about subpoenas is assured by the limitations of Rule 45(c) and the requirements in Rules 45(d) and (e) that motions be made in the court in which compliance is required under Rule 45(c). But transfer to the court where the action is pending is sometimes warranted. If the person subject to the subpoena consents to transfer, Rule 45(f) provides that the court where compliance is required may do so. In the absence of consent, the court may transfer in exceptional circumstances, and the proponent of transfer bears the burden of showing that such circumstances are present. The prime concern should be avoiding burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions. In some circumstances, however, transfer may be warranted in order to avoid disrupting the issuing courts management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion. Judges in compliance districts may find it helpful to consult with the judge in the issuing court presiding over the underlying case while addressing subpoena-related motions. If the motion is transferred, judges are encouraged to permit telecommunications methods to minimize the burden a transfer imposes on nonparties, if it is necessary for attorneys admitted in the court where the motion is made to appear in the court in which the action is pending. The rule provides that if these attorneys are authorized to practice in the court where the motion is made, they may file papers and appear in the court in which the action is pending in relation to the motion as officers of that court. After transfer, the court where the action is pending will decide the motion. If the court rules that discovery is not justified, that should end the matter. If the court orders further discovery, it is possible that retransfer may be important to enforce the order. One consequence of failure to obey such an order is contempt, addressed in Rule 45(g). Rule 45(g) and Rule 37(b)(1) are both amended to provide that disobedience of an order enforcing a subpoena after transfer is contempt of the issuing court and the court where compliance is required under Rule 45(c). In some instances, however, there may be a question about whether the issuing court can impose contempt sanctions on a distant nonparty. If such circumstances arise, or if it is better to supervise compliance in the court where compliance is required, the rule provides authority for retransfer for enforcement. Although changed circumstances may prompt a modification of such an order, it is not expected that the compliance court will reexamine the resolution of the underlying motion. Subdivision (g) The rule is also amended to clarify that contempt sanctions may be applied to a person who disobeys a subpoena-related order, as well as one who fails entirely to obey a subpoena. In civil litigation, it would be rare for a court to use contempt sanctions without first ordering compliance with a subpoena, and the order might not require all the compliance sought by the subpoena. Often contempt proceedings will be initiated by an order to show cause, and an order to comply or be held in contempt may modify the subpoenas command. Disobedience of such an order may be treated as contempt. The second sentence of former subdivision (e) is deleted as unnecessary. Changes Made After Publication and Comment Rule 46. Objecting to a Ruling or Order  A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, a party need only state the action that it wants the court to take or objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made. (As amended Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Abolition of formal exceptions is often provided by statute. See Ill.Rev.Stat. (1937), ch. 110,  204; Neb.Comp.Stat. (1929)  201139; N.M.Stat.Ann. (Courtright, 1929)  105830; 2 N.D.Comp.Laws Ann. (1913)  7653; Ohio Code Ann. (Throckmorton, 1936)  11560; 1 S.D.Comp.Laws (1929)  2542; Utah Rev.Stat.Ann. (1933)  104392, 1042418; Va.Rules of Court, Rule 22, 163 Va. v, xii (1935); Wis.Stat. (1935)  270.39. Compare N.Y.C.P.A. (1937)  583, 445, and 446, all as amended by L. 1936, ch. 915. Rule 51 deals with objections to the courts instructions to the jury. U.S.C., Title 28, [former]  776 (Bill of exceptions; authentication; signing of by judge) and [former] 875 (Review of findings in cases tried without a jury) are superseded insofar as they provide for formal exceptions, and a bill of exceptions. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 46 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 47. Selecting Jurors (a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper. (b) Peremptory Challenges. The court must allow the number of peremptory challenges provided by 28 U.S.C.  1870. (c) Excusing a Juror. During trial or deliberation, the court may excuse a juror for good cause. (As amended Feb. 28, 1966 July 1, 1966 Apr. 30, 1991 Dec. 1, 1991 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Note to Subdivision (b) Provisions for qualifying, drawing, and challenging of jurors are found in U.S.C., Title 28:  411 [now 1861] (Qualifications and exemptions)  412 [now 1864] (Manner of drawing)  413 [now 1865] (Apportioned in district)  415 [see 1862] (Not disqualified because of race or color)  416 [now 1867] (Venire; service and return)  417 [now 1866] (Talesmen for petit jurors)  418 [now 1866] (Special juries)  423 [now 1869] (Jurors not to serve more than once a year)  424 [now 1870] (Challenges) and D.C. Code (1930) Title 18,  341360 (Juries and Jury Commission) and Title 6,  366 (Peremptory challenges. Notes of Advisory Committee on Rules1966 Amendment The revision of this subdivision brings it into line with the amendment of Rule 24(c) of the Federal Rules of Criminal Procedure. That rule previously allowed four alternate jurors, as contrasted with the two allowed in civil cases, and the amendments increase the number of a maximum of six in all cases. The Advisory Committees Note to amended Criminal Rule 24(c) points to experience demonstrating that four alternates may not be enough in some lengthy criminal trials; and the same may be said of civil trials. The Note adds: The words or are found to be are added to the second sentence to make clear that an alternate juror may be called in the situation where it is first discovered during the trial that a juror was unable or disqualified to perform his duties at the time he was sworn. Notes of Advisory Committee on Rules1991 Amendment Subdivision (b) The former rule reflected the long-standing assumption that a jury would consist of exactly twelve members. It provided for additional jurors to be used as substitutes for jurors who are for any reason excused or disqualified from service after the commencement of the trial. Additional jurors were traditionally designated at the outset of the trial, and excused at the close of the evidence if they had not been promoted to full service on account of the elimination of one of the original jurors. The use of alternate jurors has been a source of dissatisfaction with the jury system because of the burden it places on alternates who are required to listen to the evidence but denied the satisfaction of participating in its evaluation. Subdivision (c) Committee Notes on Rules2007 Amendment The language of Rule 47 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 48. Number of Jurors; Verdict; Polling (a) Number of Jurors. A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c). (b) Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members. (c) Polling. After a verdict is returned but before the jury is discharged, the court must on a partys request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial. (As amended Apr. 30, 1991 Dec. 1, 1991 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 For provisions in state codes, compare Utah Rev.Stat.Ann. (1933)  48O5 (In civil cases parties may agree in open court on lesser number of jurors); 2 Wash.Rev.Stat.Ann. (Remington, 1932)  323 (Parties may consent to any number of jurors not less than three). Notes of Advisory Committee on Rules1991 Amendment The former rule was rendered obsolete by the adoption in many districts of local rules establishing six as the standard size for a civil jury. It appears that the minimum size of a jury consistent with the Seventh Amendment is six. Cf. Ballew v. Georgia Because the institution of the alternate juror has been abolished by the proposed revision of Rule 47, it will ordinarily be prudent and necessary, in order to provide for sickness or disability among jurors, to seat more than six jurors. The use of jurors in excess of six increases the representativeness of the jury and harms no interest of a party. Ray v. Parkside Surgery Center If the court takes the precaution of seating a jury larger than six, an illness occurring during the deliberation period will not result in a mistrial, as it did formerly, because all seated jurors will participate in the verdict and a sufficient number will remain to render a unanimous verdict of six or more. In exceptional circumstances, as where a jury suffers depletions during trial and deliberation that are greater than can reasonably be expected, the parties may agree to be bound by a verdict rendered by fewer than six jurors. The court should not, however, rely upon the availability of such an agreement, for the use of juries smaller than six is problematic for reasons fully explained in Ballew v. Georgia Committee Notes on Rules2007 Amendment The language of Rule 48 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Jury polling is added as new subdivision (c), which is drawn from Criminal Rule 31(d) with minor revisions to reflect Civil Rules Style and the parties opportunity to stipulate to a nonunanimous verdict. Rule 49. Special Verdict; General Verdict and Questions (a) Special Verdict. (1)  In General. (A) submitting written questions susceptible of a categorical or other brief answer; (B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or (C) using any other method that the court considers appropriate. (2)  Instructions. (3)  Issues Not Submitted. (b) General Verdict with Answers to Written Questions. (1)  In General. (2)  Verdict and Answers Consistent. (3)  Answers Inconsistent with the Verdict. (A) approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding the general verdict; (B) direct the jury to further consider its answers and verdict; or (C) order a new trial. (4)  Answers Inconsistent with Each Other and the Verdict. (As amended Jan. 21, 1963 July 1, 1963 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 The Federal courts are not bound to follow state statutes authorizing or requiring the court to ask a jury to find a special verdict or to answer interrogatories. Victor American Fuel Co. v. Peccarich Spokane and I. E. R. Co. v. Campbell Federal Practice Subdivision (b Walker v. New Mexico and Southern Pacific R. R Southwestern Brewery and Ice Co. v. Schmidt Compare Wis.Stat. (1935)  270.27, 270.28 and 270.30 Green, A New Development in Jury Trial A Brief History of Special Verdicts and Special Interrogatories The provisions of U.S.C., Title 28, [former]  400(3) (Declaratory judgments authorized; procedure) permitting the submission of issues of fact to a jury are covered by this rule. Notes of Advisory Committee on Rules1963 Amendment This amendment conforms to the amendment of Rule 58. See the Advisory Committees Note to Rule 58, as amended. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 49 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling (a) Judgment as a Matter of Law. (1)  In General. (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (2)  Motion. (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the courts later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgmentor if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was dischargedthe movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. (c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial. (1)  In General. (2)  Effect of a Conditional Ruling. (d) Time for a Losing Partys New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment. (e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment. (As amended Jan. 21, 1963 July 1, 1963 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 27, 1995 Dec. 1, 1995 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Sampliner v. Motion Picture Patents Co Union Indemnity Co. v. United States Federal Practice Note to Subdivision (b) Baltimore and Carolina Line v. Redman Slocum v. New York Life Ins. Co See Northern Ry. Co. v. Page Trial by Jury in United States Courts Judicial Administration Trial by Jury and the Reform of Civil Procedure Notes of Advisory Committee on Rules1963 Amendment Subdivision (a) Federal Practice and Procedure Origin and Development of the Directed Verdict Subdivision (b) The amendment of the second sentence of this subdivision sets the time limit for making the motion for judgment n.o.v. at 10 days after the entry of judgment, rather than 10 days after the reception of the verdict. Thus the time provision is made consistent with that contained in Rule 59(b) (time for motion for new trial) and Rule 52(b) (time for motion to amend findings by the court). Subdivision (c) Montgomery Ward & Co. v. Duncan Cone v. West Virginia Pulp & Paper Co Globe Liquor Co., Inc. v. San Roman Fountain v. Filson Johnson v. New York, N.H. & H.R.R. Co In the situation mentioned, subdivision (c)(1) If the motion for new trial has been conditionally granted, and the judgment is reversed, the new trial shall proceed unless the appellate court has otherwise ordered. The party against whom the judgment n.o.v. was entered below may, as appellant, besides seeking to overthrow that judgment, also attack the conditional grant of the new trial. And the appellate court, if it reverses the judgment n.o.v., may in an appropriate case also reverse the conditional grant of the new trial and direct that judgment be entered on the verdict. See Bailey v. Slentz Moist Cold Refrigerator Co. v. Lou Johnson Co Peters v. Smith Dailey v. Timmer Lind v. Schenley Industries, Inc Cox v. Pennsylvania R.R Federal Practice and Procedure Moores Federal Practice If the motion for a new trial has been conditionally denied, and the judgment is reversed, subsequent proceedings shall be in accordance with the order of the appellate court. The party in whose favor judgment n.o.v. was entered below may, as appellee, besides seeking to uphold that judgment, also urge on the appellate court that the trial court committed error in conditionally denying the new trial. The appellee may assert this error in his brief, without taking a cross-appeal. Cf. Patterson v. Pennsylvania R.R Hughes v. St. Louis Nat. L. Baseball Club, Inc Subdivision (c)(2) Cone v. West Virginia Pulp & Paper Co., supra In some unusual circumstances, however, the grant of the new-trial motion may be only conditional, and the judgment will not be superseded. See the situation in Tribble v. Bruin Even if the verdict-winner makes no motion for a new trial, he is entitled upon his appeal from the judgment n.o.v. not only to urge that that judgment should be reversed and judgment entered upon the verdict, but that errors were committed during the trial which at the least entitle him to a new trial. Subdivision (d) Weade v. Dichmann, Wright & Pugh, Inc Subdivision (d) does not attempt a regulation of all aspects of the procedure where the motion for judgment n.o.v. and any accompanying motion for a new trial are denied, since the problems have not been fully canvassed in the decisions and the procedure is in some respects still in a formative stage. It is, however, designed to give guidance on certain important features of the practice. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment Subdivision (a) Cf. Galloway v. United States The revision abandons the familiar terminology of direction of verdict If a motion is denominated a motion for directed verdict or for judgment notwithstanding the verdict, the partys error is merely formal. Such a motion should be treated as a motion for judgment as a matter of law in accordance with this rule. Paragraph (a)(1) articulates the standard for the granting of a motion for judgment as a matter of law. It effects no change in the existing standard. That existing standard was not expressed in the former rule, but was articulated in long-standing case law. See generally Directions for Directed Verdicts: A Compass for Federal Courts The revision authorizes the court to perform its duty to enter judgment as a matter of law at any time during the trial, as soon as it is apparent that either party is unable to carry a burden of proof that is essential to that partys case. Thus, the second sentence of paragraph (a)(1) authorizes the court to consider a motion for judgment as a matter of law as soon as a party has completed a presentation on a fact essential to that partys case. Such early action is appropriate when economy and expedition will be served. In no event, however, should the court enter judgment against a party who has not been apprised of the materiality of the dispositive fact and been afforded an opportunity to present any available evidence bearing on that fact. In order further to facilitate the exercise of the authority provided by this rule, Rule 16 is also revised to encourage the court to schedule an order of trial that proceeds first with a presentation on an issue that is likely to be dispositive, if such an issue is identified in the course of pretrial. Such scheduling can be appropriate where the court is uncertain whether favorable action should be taken under Rule 56. Thus, the revision affords the court the alternative of denying a motion for summary judgment while scheduling a separate trial of the issue under Rule 42(b) or scheduling the trial to begin with a presentation on that essential fact which the opposing party seems unlikely to be able to maintain. Paragraph (a)(2) retains the requirement that a motion for judgment be made prior to the close of the trial, subject to renewal after a jury verdict has been rendered. The purpose of this requirement is to assure the responding party an opportunity to cure any deficiency in that partys proof that may have been overlooked until called to the partys attention by a late motion for judgment. Cf. Farley Transp. Co. v. Santa Fe Trail Transp. Co Benson v. Allphin McLaughlin v. The Fellows Gear Shaper Co Slocum v. New York Insurance Co Baltimore & Carolina Line v. Redman The second sentence of paragraph (a)(2) does impose a requirement that the moving party articulate the basis on which a judgment as a matter of law might be rendered. The articulation is necessary to achieve the purpose of the requirement that the motion be made before the case is submitted to the jury, so that the responding party may seek to correct any overlooked deficiencies in the proof. The revision thus alters the result in cases in which courts have used various techniques to avoid the requirement that a motion for a directed verdict be made as a predicate to a motion for judgment notwithstanding the verdict. E.g., Benson v. Allphin See generally This subdivision deals only with the entry of judgment and not with the resolution of particular factual issues as a matter of law. The court may, as before, properly refuse to instruct a jury to decide an issue if a reasonable jury could on the evidence presented decide that issue in only one way. Subdivision (b) Montgomery Ward & Co. v. Duncan E.g., Kutner Buick, Inc. v. American Motors Corp Often it appears to the court or to the moving party that a motion for judgment as a matter of law made at the close of the evidence should be reserved for a post-verdict decision. This is so because a jury verdict for the moving party moots the issue and because a pre-verdict ruling gambles that a reversal may result in a new trial that might have been avoided. For these reasons, the court may often wisely decline to rule on a motion for judgment as a matter of law made at the close of the evidence, and it is not inappropriate for the moving party to suggest such a postponement of the ruling until after the verdict has been rendered. In ruling on such a motion, the court should disregard any jury determination for which there is no legally sufficient evidentiary basis enabling a reasonable jury to make it. The court may then decide such issues as a matter of law and enter judgment if all other material issues have been decided by the jury on the basis of legally sufficient evidence, or by the court as a matter of law. The revised rule is intended for use in this manner with Rule 49. Thus, the court may combine facts established as a matter of law either before trial under Rule 56 or at trial on the basis of the evidence presented with other facts determined by the jury under instructions provided under Rule 49 to support a proper judgment under this rule. This provision also retains the former requirement that a post-trial motion under the rule must be made within 10 days after entry of a contrary judgment. The renewed motion must be served and filed as provided by Rule 5. A purpose of this requirement is to meet the requirements of F.R.App.P. 4(a)(4). Subdivision (c) Subdivision (d) Notes of Advisory Committee on Rules1993 Amendment This technical amendment corrects an ambiguity in the text of the 1991 revision of the rule, which, as indicated in the Notes, was not intended to change the existing standards under which directed verdicts could be granted. This amendment makes clear that judgments as a matter of law in jury trials may be entered against both plaintiffs and defendants and with respect to issues or defenses that may not be wholly dispositive of a claim or defense. Notes of Advisory Committee on Rules1995 Amendment The only change, other than stylistic, intended by this revision is to prescribe a uniform explicit time for filing of post-judgment motions under this ruleno later than 10 days after entry of the judgment. Previously, there was an inconsistency in the wording of Rules 50, 52, and 59 with respect to whether certain post-judgment motions had to be filed, or merely served, during that period. This inconsistency caused special problems when motions for a new trial were joined with other post-judgment motions. These motions affect the finality of the judgment, a matter often of importance to third persons as well as the parties and the court. The Committee believes that each of these rules should be revised to require filing before end of the 10-day period. Filing is an event that can be determined with certainty from court records. The phrase no later than is usedrather than withinto include post-judgment motions that sometimes are filed before actual entry of the judgment by the clerk. It should be noted that under Rule 6(a) Saturdays, Sundays, and legal holidays are excluded in measuring the 10-day period, and that under Rule 5 the motions when filed are to contain a certificate of service on other parties. Committee Notes on Rules2006 Amendment The language of Rule 50(a) has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 50(b) is amended to permit renewal of any Rule 50(a) motion for judgment as a matter of law, deleting the requirement that a motion be made at the close of all the evidence. Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion. The earlier motion informs the opposing party of the challenge to the sufficiency of the evidence and affords a clear opportunity to provide additional evidence that may be available. The earlier motion also alerts the court to the opportunity to simplify the trial by resolving some issues, or even all issues, without submission to the jury. This fulfillment of the functional needs that underlie present Rule 50(b) also satisfies the Seventh Amendment. Automatic reservation of the legal questions raised by the motion conforms to the decision in Baltimore & Carolina Line v. Redman This change responds to many decisions that have begun to move away from requiring a motion for judgment as a matter of law at the literal close of all the evidence. Although the requirement has been clearly established for several decades, lawyers continue to overlook it. The courts are slowly working away from the formal requirement. The amendment establishes the functional approach that courts have been unable to reach under the present rule and makes practice more consistent and predictable. Many judges expressly invite motions at the close of all the evidence. The amendment is not intended to discourage this useful practice. Finally, an explicit time limit is added for making a posttrial motion when the trial ends without a verdict or with a verdict that does not dispose of all issues suitable for resolution by verdict. The motion must be made no later than 10 days after the jury was discharged. Changes Made After Publication and Comment Committee Notes on Rules2007 Amendment The language of Rule 50 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 50(b) stated that the court reserves ruling on a motion for judgment as a matter of law made at the close of all the evidence [i]f, for any reason, the court does not grant the motion. The words for any reason reflected the proposition that the reservation is automatic and inescapable. The ruling is reserved even if the court explicitly denies the motion. The same result follows under the amended rule. If the motion is not granted, the ruling is reserved. Amended Rule 50(e) identifies the appellate courts authority to direct the entry of judgment. This authority was not described in former Rule 50(d), but was recognized in Weisgram v. Marley Co. Neely v. Martin K. Eby Construction Company Committee Notes on Rules2009 Amendment Former Rules 50, 52, and 59 adopted 10-day periods for their respective post-judgment motions. Rule 6(b) prohibits any expansion of those periods. Experience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days. Rule 6(b) continues to prohibit expansion of the 28-day period. Changes Made after Publication and Comment Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error (a) Requests. (1)  Before or at the Close of the Evidence. (2)  After the Close of the Evidence. (A) file requests for instructions on issues that could not reasonably have been anticipated by an earlier time that the court set for requests; and (B) with the courts permission, file untimely requests for instructions on any issue. (b) Instructions. The court: (1) must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments; (2) must give the parties an opportunity to object on the record and out of the jurys hearing before the instructions and arguments are delivered; and (3) may instruct the jury at any time before the jury is discharged. (c) Objections. (1)  How to Make. (2)  When to Make. (A) a party objects at the opportunity provided under Rule 51(b)(2); or (B) a party was not informed of an instruction or action on a request before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused. (d) Assigning Error; Plain Error. (1)  Assigning Error. (A) an error in an instruction actually given, if that party properly objected; or (B) a failure to give an instruction, if that party properly requested it andunless the court rejected the request in a definitive ruling on the recordalso properly objected. (2)  Plain Error. (As amended Mar. 2, 1987 Aug. 1, 1987 Mar. 27, 2003 Dec. 1, 2003 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Supreme Court Rule 8 requires exceptions to the charge of the court to the jury which shall distinctly state the several matters of law in the charge to which exception is taken. Similar provisions appear in the rules of the various Circuit Courts of Appeals. Notes of Advisory Committee on Rules1987 Amendment Although Rule 51 in its present form specifies that the court shall instruct the jury only after the arguments of the parties are completed, in some districts (typically those in states where the practice is otherwise) it is common for the parties to stipulate to instruction before the arguments. The purpose of the amendment is to give the court discretion to instruct the jury either before or after argument. Thus, the rule as revised will permit resort to the long-standing federal practice or to an alternative procedure, which has been praised because it gives counsel the opportunity to explain the instructions, argue their application to the facts and thereby give the jury the maximum assistance in determining the issues and arriving at a good verdict on the law and the evidence. As an ancillary benefit, this approach aids counsel by supplying a natural outline so that arguments may be directed to the essential fact issues which the jury must decide. See generally Raymond, Merits and Demerits of the Missouri System of Instructing Juries Committee Notes on Rules2003 Amendment Rule 51 is revised to capture many of the interpretations that have emerged in practice. The revisions in text will make uniform the conclusions reached by a majority of decisions on each point. Additions also are made to cover some practices that cannot now be anchored in the text of Rule 51. Scope Requests The close-of-the-evidence deadline may come before trial is completed on all potential issues. Trial may be formally bifurcated or may be sequenced in some less formal manner. The close of the evidence is measured by the occurrence of two events: completion of all intended evidence on an identified phase of the trial and impending submission to the jury with instructions. The risk in directing a pretrial request deadline is that trial evidence may raise new issues or reshape issues the parties thought they had understood. Courts need not insist on pretrial requests in all cases. Even if the request time is set before trial or early in the trial, subdivision (a)(2)(A) permits requests after the close of the evidence to address issues that could not reasonably have been anticipated at the earlier time for requests set by the court. Subdivision (a)(2)(B) expressly recognizes the courts discretion to act on an untimely request. The most important consideration in exercising the discretion confirmed by subdivision (a)(2)(B) is the importance of the issue to the casethe closer the issue lies to the plain error that would be recognized under subdivision (d)(2), the better the reason to give an instruction. The cogency of the reason for failing to make a timely request also should be considered. To be considered under subdivision (a)(2)(B) a request should be made before final instructions and before final jury arguments. What is a final instruction and argument depends on the sequence of submitting the case to the jury. If separate portions of the case are submitted to the jury in sequence, the final arguments and final instructions are those made on submitting to the jury the portion of the case addressed by the arguments and instructions. Instructions Subdivision (b)(2) complements subdivision (b)(1) by carrying forward the opportunity to object established by present Rule 51. It makes explicit the opportunity to object on the record, ensuring a clear memorial of the objection. Subdivision (b)(3) reflects common practice by authorizing instructions at any time after trial begins and before the jury is discharged. Objections Preserving a claim of error and plain error Many circuits have recognized that an error not preserved under Rule 51 may be reviewed in exceptional circumstances. The language adopted to capture these decisions in subdivision (d)(2) is borrowed from Criminal Rule 52. Although the language is the same, the context of civil litigation often differs from the context of criminal prosecution; actual application of the plain-error standard takes account of the differences. The Supreme Court has summarized application of Criminal Rule 52 as involving four elements: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Johnson v. U.S. U.S. v. Atkinson In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise substantially affect the fairness, integrity, or public reputation of judicial proceedings. The courts duty to give correct jury instructions in a civil action is shaped by at least four factors. The factor most directly implied by a plain error rule is the obviousness of the mistake. The importance of the error is a second major factor. The costs of correcting an error reflect a third factor that is affected by a variety of circumstances. In a case that seems close to the fundamental error line, account also may be taken of the impact a verdict may have on nonparties. Changes Made After Publication and Comment Rule 51(d) was revised to conform the plain-error provision to the approach taken in Criminal Rule 52(b). The Note was revised as described in the Recommendation. Committee Notes on Rules2007 Amendment The language of Rule 51 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 52. Findings and Conclusions by the Court; Judgment on Partial Findings (a) Findings and Conclusions. (1)  In General. (2)  For an Interlocutory Injunction. (3)  For a Motion. (4)  Effect of a Masters Findings. (5)  Questioning the Evidentiary Support. (6)  Setting Aside the Findings. (b) Amended or Additional Findings. On a partys motion filed no later than 28 days after the entry of judgment, the court may amend its findingsor make additional findingsand may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59. (c) Judgment on Partial Findings. If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a). (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Apr. 28, 1983 Aug. 1, 1983 Apr. 29, 1985 Aug. 1, 1985 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 27, 1995 Dec. 1, 1995 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 See [former] Equity Rule 7012, as amended Nov. 25, 1935 Subdivision (a Silver King Coalition Mines, Co. v. Silver King Consolidated Mining Co Warren v. Keep Furrer v. Ferris Tilghman v. Proctor Kimberly v. Arms Kaeser & Blair, Inc., v. Merchants Assn Dunn v. Trefry In the following states findings of fact are required in all cases tried without a jury (waiver by the parties being permitted as indicated at the end of the listing): Arkansas, Civ.Code (Crawford, 1934)  364; California, Code Civ.Proc. (Deering, 1937)  632, 634; Colorado, 1 Stat.Ann. (1935) Code Civ.Proc.  232, 291 (in actions before referees or for possession of and damages to land); Connecticut, Gen.Stats.  5660, 5664; Idaho, 1 Code Ann. (1932)  7302 through 7305; Massachusetts (equity cases), 2 Gen.Laws (Ter.Ed., 1932) ch. 214,  23; Minnesota, 2 Stat. (Mason, 1927)  9311; Nevada, 4 Comp.Laws (Hillyer, 1929)  87838784; New Jersey, Sup.Ct. Rule 113, 2 N.J.Misc. 1197, 1239 (1924); New Mexico, Stat.Ann. (Courtright, 1929)  105813; North Carolina, Code (1935)  569; North Dakota, 2 Comp.Laws Ann. (1913)  7641; Oregon, 2 Code Ann. (1930)  2502; South Carolina, Code (Michie, 1932)  649; South Dakota, 1 Comp.Laws (1929)  25252526; Utah, Rev.Stat.Ann. (1933)  104262, 104263; Vermont (where jury trial waived), Pub. Laws (1933)  2069; Washington, 2 Rev.Stat.Ann. (Remington, 1932)  367; Wisconsin, Stat. (1935)  270.33. The parties may waive this requirement for findings in California, Idaho, North Dakota, Nevada, New Mexico, Utah, and South Dakota. In the following states the review of findings of fact in all non-jury cases, including jury waived cases, is assimilated to the equity review: Alabama, Code Ann. (Michie, 1928)  9498, 8599; California, Code Civ.Proc. (Deering, 1937)  956a; but see 20 Calif.Law Rev. 171 (1932); Colorado, Johnson v. Kountze semble Baker v. Hinricks Weininger v. Metropolitan Fire Ins. Co State Bank of Gibbon v. Walter Waldron v. Page Bussy v. Hatch York Mortgage Corporation v. Clotar Const. Corp Milnor Holding Co. v. Holt Wichita Mining and Improvement Co. v. Hale Randall v. Burk Township Custard v. Flowers Roberge v. Troy McCullough v. Puget Sound Realty Associates Cornwall v. Anderson Kinsey v. Carr Campbell v. Sutliff Gessler v. Erwin Co For examples of an assimilation of the review of findings of fact in cases tried without a jury to the review at law as made in several states, see Clark and Stone, Review of Findings of Fact Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) Moores Federal Practice Hurwitz v. Hurwitz The two sentences added at the end of Rule 52(a) eliminate certain difficulties which have arisen concerning findings and conclusions. The first of the two sentences permits findings of fact and conclusions of law to appear in an opinion or memorandum of decision. See, e.g., United States v. One 1941 Ford Sedan Detective Comics, Inc. v. Bruns Publications Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Cincinnati & L. E. R. Co United States v. Aluminum Co. of America Wellman v. United States Cook v. United States Proctor v. White Green Valley Creamery, Inc. v. United States Matton Oil Transfer Corp. v. The Dynamic Carter Coal Co. v. Litz Woodruff v. Heiser Coca-Cola Co. v. Busch Some Developments in Bankruptcy Law Hurwitz v. Hurwitz Improvements in Statement of Findings of Fact and Conclusions of Law United States v. Forness United States v. Forness, supra; United States v. Crescent Amusement Co Matton Oil Transfer Corp. v. The Dynamic, supra United States v. Forness, supra; United States v. Crescent Amusement Co., supra Petterson Lighterage & Towing Corp. v. New York Central R. Co Brown Paper Mill Co., Inc. v. Irwin Allen Bradley Co. v. Local Union No. 3 Young v. Murphy The last sentence of Rule 52(a) as amended will remove any doubt that findings and conclusions are unnecessary upon decision of a motion, particularly one under Rule 12 or Rule 56, except as provided in amended Rule 41(b). As so holding, see Thomas v. Peyser Schad v. Twentieth Century-Fox Corp Prudential Ins. Co. of America v. Goldstein Somers Coal Co. v. United States Pen-Ken Oil & Gas Corp. v. Warfield Natural Gas Co Necessity of Findings of Fact Notes of Advisory Committee on Rules1963 Amendment This amendment conforms to the amendment of Rule 58. See the Advisory Committees Note to Rule 58, as amended. Notes of Advisory Committee on Rules1983 Amendment Rule 52(a) has been amended to revise its penultimate sentence to provide explicitly that the district judge may make the findings of fact and conclusions of law required in nonjury cases orally. Nothing in the prior text of the rule forbids this practice, which is widely utilized by district judges. See Christensen, A Modest Proposal for Immeasurable Improvement Notes of Advisory Committee on Rules1985 Amendment Rule 52(a) has been amended (1) to avoid continued confusion and conflicts among the circuits as to the standard of appellate review of findings of fact by the court, (2) to eliminate the disparity between the standard of review as literally stated in Rule 52(a) and the practice of some courts of appeals, and (3) to promote nationwide uniformity. See Note, Rule 52(a): Appellate Review of Findings of Fact Based on Documentary or Undisputed Evidence Some courts of appeal have stated that when a trial courts findings do not rest on demeanor evidence and evaluation of a witness credibility, there is no reason to defer to the trial courts findings and the appellate court more readily can find them to be clearly erroneous. See, e.g., Marcum v. United States e.g., Atari, Inc. v. North American Philips Consumer Electronics Corp cert. denied Lydle v. United States Swanson v. Baker Indus., Inc Taylor v. Lombard cert. denied Jack Kahn Music Co. v. Baldwin Piano & Organ Co John R. Thompson Co. v. United States A third group has adopted the view that the clearly erroneous rule applies in all nonjury cases even when findings are based solely on documentary evidence or on inferences from undisputed facts. See, e.g., Maxwell v. Sumner cert. denied United States v. Texas Education Agency cert. denied Constructora Maza, Inc. v. Banco de Ponce In re Sierra Trading Corp Case v. Morrisette The commentators also disagree as to the proper interpretation of the Rule. Compare The Doubtful Omniscience of Appellate Courts and Federal Practice and Procedure: Civil  2587 with Federal Practice  52.04, 268788 (2d ed. 1982) (Rule as written supports broader review of findings based on non-demeanor testimony). The Supreme Court has not clearly resolved the issue. See, Bose Corp. v. Consumers Union of United States, Inc Pullman Standard v. Swint United States v. General Motors Corp United States v. United States Gypsum Co The principal argument advanced in favor of a more searching appellate review of findings by the district court based solely on documentary evidence is that the rationale of Rule 52(a) does not apply when the findings do not rest on the trial courts assessment of credibility of the witnesses but on an evaluation of documentary proof and the drawing of inferences from it, thus eliminating the need for any special deference to the trial courts findings. These considerations are outweighed by the public interest in the stability and judicial economy that would be promoted by recognizing that the trial court, not the appellate tribunal, should be the finder of the facts. To permit courts of appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the district courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority. Notes of Advisory Committee on Rules1991 Amendment Subdivision (c) is added. It parallels the revised Rule 50(a), but is applicable to non-jury trials. It authorizes the court to enter judgment at any time that it can appropriately make a dispositive finding of fact on the evidence. The new subdivision replaces part of Rule 41(b), which formerly authorized a dismissal at the close of the plaintiffs case if the plaintiff had failed to carry an essential burden of proof. Accordingly, the reference to Rule 41 formerly made in subdivision (a) of this rule is deleted. As under the former Rule 41(b), the court retains discretion to enter no judgment prior to the close of the evidence. Judgment entered under this rule differs from a summary judgment under Rule 56 in the nature of the evaluation made by the court. A judgment on partial findings is made after the court has heard all the evidence bearing on the crucial issue of fact, and the finding is reversible only if the appellate court finds it to be clearly erroneous. A summary judgment, in contrast, is made on the basis of facts established on account of the absence of contrary evidence or presumptions; such establishments of fact are rulings on questions of law as provided in Rule 56(a) and are not shielded by the clear error standard of review. Notes of Advisory Committee on Rules1993 Amendment This technical amendment corrects an ambiguity in the text of the 1991 revision of the rule, similar to the revision being made to Rule 50. This amendment makes clear that judgments as a matter of law in nonjury trials may be entered against both plaintiffs and defendants and with respect to issues or defenses that may not be wholly dispositive of a claim or defense. Notes of Advisory Committee on Rules1995 Amendment The only change, other than stylistic, intended by this revision is to require that any motion to amend or add findings after a nonjury trial must be filed no later than 10 days after entry of the judgment. Previously, there was an inconsistency in the wording of Rules 50, 52, and 59 with respect to whether certain post-judgment motions had to be filed, or merely served, during that period. This inconsistency caused special problems when motions for a new trial were joined with other post-judgment motions. These motions affect the finality of the judgment, a matter often of importance to third persons as well as the parties and the court. The Committee believes that each of these rules should be revised to require filing before end of the 10-day period. Filing is an event that can be determined with certainty from court records. The phrase no later than is usedrather than withinto include post-judgment motions that sometimes are filed before actual entry of the judgment by the clerk. It should be noted that under Rule 6(a) Saturdays, Sundays, and legal holidays are excluded in measuring the 10-day period, and that under Rule 5 the motions when filed are to contain a certificate of service on other parties. Committee Notes on Rules2007 Amendment The language of Rule 52 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 52(a) said that findings are unnecessary on decisions of motions except as provided in subdivision (c) of this rule. Amended Rule 52(a)(3) says that findings are unnecessary unless these rules provide otherwise. This change reflects provisions in other rules that require Rule 52 findings on deciding motions. Rules 23(e), 23(h), and 54(d)(2)(C) are examples. Amended Rule 52(a)(5) includes provisions that appeared in former Rule 52(a) and 52(b). Rule 52(a) provided that requests for findings are not necessary for purposes of review. It applied both in an action tried on the facts without a jury and also in granting or refusing an interlocutory injunction. Rule 52(b), applicable to findings made in actions tried without a jury, provided that the sufficiency of the evidence might be later questioned whether or not in the district court the party raising the question objected to the findings, moved to amend them, or moved for partial findings. Former Rule 52(b) did not explicitly apply to decisions granting or refusing an interlocutory injunction. Amended Rule 52(a)(5) makes explicit the application of this part of former Rule 52(b) to interlocutory injunction decisions. Former Rule 52(c) provided for judgment on partial findings, and referred to it as judgment as a matter of law. Amended Rule 52(c) refers only to judgment, to avoid any confusion with a Rule 50 judgment as a matter of law in a jury case. The standards that govern judgment as a matter of law in a jury case have no bearing on a decision under Rule 52(c). Committee Notes on Rules2009 Amendment Former Rules 50, 52, and 59 adopted 10-day periods for their respective post-judgment motions. Rule 6(b) prohibits any expansion of those periods. Experience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days. Rule 6(b) continues to prohibit expansion of the 28-day period. Changes Made after Publication and Comment Rule 53. Masters (a) Appointment. (1)  Scope. (A) perform duties consented to by the parties; (B) hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if appointment is warranted by: (i) some exceptional condition; or (ii) the need to perform an accounting or resolve a difficult computation of damages; or (C) address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district. (2)  Disqualification. (3)  Possible Expense or Delay. (b) Order Appointing a Master. (1)  Notice. (2)  Contents. (A) the masters duties, including any investigation or enforcement duties, and any limits on the masters authority under Rule 53(c); (B) the circumstances, if any, in which the master may communicate ex parte with the court or a party; (C) the nature of the materials to be preserved and filed as the record of the masters activities; (D) the time limits, method of filing the record, other procedures, and standards for reviewing the masters orders, findings, and recommendations; and (E) the basis, terms, and procedure for fixing the masters compensation under Rule 53(g). (3)  Issuing. (A) the master files an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C.  455; and (B) if a ground is disclosed, the parties, with the courts approval, waive the disqualification. (4)  Amending. (c) Masters Authority. (1)  In General. (A) regulate all proceedings; (B) take all appropriate measures to perform the assigned duties fairly and efficiently; and (C) if conducting an evidentiary hearing, exercise the appointing courts power to compel, take, and record evidence. (2)  Sanctions. (d) Masters Orders. A master who issues an order must file it and promptly serve a copy on each party. The clerk must enter the order on the docket. (e) Masters Reports. A master must report to the court as required by the appointing order. The master must file the report and promptly serve a copy on each party, unless the court orders otherwise. (f) Action on the Masters Order, Report, or Recommendations. (1)  Opportunity for a Hearing; Action in General. (2)  Time to Object or Move to Adopt or Modify. (3)  Reviewing Factual Findings. (A) the findings will be reviewed for clear error; or (B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) will be final. (4)  Reviewing Legal Conclusions. (5)  Reviewing Procedural Matters. (g) Compensation. (1)  Fixing Compensation. (2)  Payment. (A) by a party or parties; or (B) from a fund or subject matter of the action within the courts control. (3)  Allocating Payment. (h) Appointing a Magistrate Judge. A magistrate judge is subject to this rule only when the order referring a matter to the magistrate judge states that the reference is made under this rule. (As amended Feb. 28, 1966 July 1, 1966 Apr. 28, 1983 Aug. 1, 1983 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Mar. 27, 2003 Dec. 1, 2003 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Note to Subdivision (b) Ex parte Peterson Note to Subdivision (c) Note to Subdivision (d) (2) This is substantially [former] Equity Rule 52 (Attendance of Witnesses Before Commissioner, Master, or Examiner). (3) This is substantially [former] Equity Rule 63 (Form of Accounts Before Master). Note to Subdivision (e) Camden v. Stuart Ex parte Peterson Notes of Advisory Committee on Rules1966 Amendment These changes are designed to preserve the admiralty practice whereby difficult computations are referred to a commissioner or assessor, especially after an interlocutory judgment determining liability. As to separation of issues for trial see Rule 42(b). Notes of Advisory Committee on Rules1983 Amendment Subdivision (a) The term special master is retained in Rule 53 in order to maintain conformity with 28 U.S.C.  636(b)(2), authorizing a judge to designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States District Courts. Obviously, when a magistrate serves as a special master, the provisions for compensation of masters are inapplicable, and the amendment to subdivision (a) so provides. Although the existence of magistrates may make the appointment of outside masters unnecessary in many instances, see, e.g., Gautreaux v. Chicago Housing Authority sub nom., Chicago Housing Authority v. Austin Avco Corp. v. American Tel. & Tel. Co Subdivision (b) private masters Masters and Magistrates Part II: The American Analogue Subdivision (c) Subdivision (f) A magistrate serving as a special master under 28 U.S.C.  636(b)(2) is governed by the provisions of Rule 53, with the exceptional condition requirement lifted in the case of a consensual reference. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment The purpose of the revision is to expedite proceedings before a master. The former rule required only a filing of the masters report, with the clerk then notifying the parties of the filing. To receive a copy, a party would then be required to secure it from the clerk. By transmitting directly to the parties, the master can save some efforts of counsel. Some local rules have previously required such action by the master. Notes of Advisory Committee on Rules1993 Amendment This revision is made to conform the rule to changes made by the Judicial Improvements Act of 1990. Committee Notes on Rules2003 Amendment Rule 53 is revised extensively to reflect changing practices in using masters. From the beginning in 1938, Rule 53 focused primarily on special masters who perform trial functions. Since then, however, courts have gained experience with masters appointed to perform a variety of pretrial and post-trial functions. See Willging, Hooper, Leary, Miletich, Reagan, & Shapard, Special Masters Incidence and Activity Special masters are appointed in many circumstances outside the Civil Rules. Rule 53 applies only to proceedings that Rule 1 brings within its reach. Subdivision (a)(1) Consent Masters Trial Masters La Buy v. Howes Leather Co. Los Angeles Brush Mfg. Corp. v. James Subparagraph (a)(1)(B)(ii) carries forward the approach of present Rule 53(b), which exempts from the exceptional condition requirement matters of account and of difficult computation of damages. This approach is justified only as to essentially ministerial determinations that require mastery of much detailed information but that do not require extensive determinations of credibility. Evaluations of witness credibility should only be assigned to a trial master when justified by an exceptional condition. The use of a trial master without party consent is abolished as to matters to be decided by a jury unless a statute provides for this practice. Abolition of the direct power to appoint a trial master as to issues to be decided by a jury leaves the way free to appoint a trial master with the consent of all parties. A trial master should be appointed in a jury case, with consent of the parties and concurrence of the court, only if the parties waive jury trial with respect to the issues submitted to the master or if the masters findings are to be submitted to the jury as evidence in the manner provided by former Rule 53(e)(3). In no circumstance may a master be appointed to preside at a jury trial. The central function of a trial master is to preside over an evidentiary hearing on the merits of the claims or defenses in the action. This function distinguishes the trial master from most functions of pretrial and post-trial masters. If any master is to be used for such matters as a preliminary injunction hearing or a determination of complex damages issues, for example, the master should be a trial master. The line, however, is not distinct. A pretrial master might well conduct an evidentiary hearing on a discovery dispute, and a post-trial master might conduct evidentiary hearings on questions of compliance. Rule 53 has long provided authority to report the evidence without recommendations in nonjury trials. This authority is omitted from Rule 53(a)(1)(B). In some circumstances a master may be appointed under Rule 53(a)(1)(A) or (C) to take evidence and report without recommendations. For nonjury cases, a master also may be appointed to assist the court in discharging trial duties other than conducting an evidentiary hearing. Pretrial and Post-Trial Masters Magistrate Judges There is statutory authority to appoint a magistrate judge as special master. 28 U.S.C.  636(b)(2). In special circumstances, or when expressly authorized by a statute other than  636(b)(2), it may be appropriate to appoint a magistrate judge as a master when needed to perform functions outside those listed in  636(b)(1). There is no apparent reason to appoint a magistrate judge to perform as master duties that could be performed in the role of magistrate judge. Party consent is required for trial before a magistrate judge, moreover, and this requirement should not be undercut by resort to Rule 53 unless specifically authorized by statute; see 42 U.S.C.  2000e5(f)(5). Pretrial Masters A pretrial master should be appointed only when the need is clear. Direct judicial performance of judicial functions may be particularly important in cases that involve important public issues or many parties. At the extreme, a broad delegation of pretrial responsibility as well as a delegation of trial responsibilities can run afoul of Article III. A master also may be appointed to address matters that blur the divide between pretrial and trial functions. The courts responsibility to interpret patent claims as a matter of law, for example, may be greatly assisted by appointing a master who has expert knowledge of the field in which the patent operates. Review of the masters findings will be de novo under Rule 53(g)(4), but the advantages of initial determination by a master may make the process more effective and timely than disposition by the judge acting alone. Determination of foreign law may present comparable difficulties. The decision whether to appoint a master to address such matters is governed by subdivision (a)(1)(C), not the trial-master provisions of subdivision (a)(1)(B). Post-Trial Masters Reliance on a master is appropriate when a complex decree requires complex policing, particularly when a party has proved resistant or intransigent. This practice has been recognized by the Supreme Court, see Local 28, Sheet Metal Workers Internat. Assn. v. EEOC Expert Witness Overlap Subdivision (a)(2) and (3) One potential disqualification issue is peculiar to the masters role. It may happen that a master who is an attorney represents a client whose litigation is assigned to the judge who appointed the attorney as master. Other parties to the litigation may fear that the attorney-master will gain special respect from the judge. A flat prohibition on appearance before the appointing judge during the time of service as master, however, might in some circumstances unduly limit the opportunity to make a desirable appointment. These matters may be regulated to some extent by state rules of professional responsibility. The question of present conflicts, and the possibility of future conflicts, can be considered at the time of appointment. Depending on the circumstances, the judge may consider it appropriate to impose a non-appearance condition on the lawyer-master, and perhaps on the masters firm as well. Subdivision (b) The hearing requirement of Rule 53(b)(1) can be satisfied by an opportunity to make written submissions unless the circumstances require live testimony. Rule 53(b)(2) requires precise designation of the masters duties and authority. Clear identification of any investigating or enforcement duties is particularly important. Clear delineation of topics for any reports or recommendations is also an important part of this process. And it is important to protect against delay by establishing a time schedule for performing the assigned duties. Early designation of the procedure for fixing the masters compensation also may provide useful guidance to the parties. Ex parte communications between a master and the court present troubling questions. Ordinarily the order should prohibit such communications, assuring that the parties know where authority is lodged at each step of the proceedings. Prohibiting ex parte communications between master and court also can enhance the role of a settlement master by assuring the parties that settlement can be fostered by confidential revelations that will not be shared with the court. Yet there may be circumstances in which the masters role is enhanced by the opportunity for ex parte communications with the court. A master assigned to help coordinate multiple proceedings, for example, may benefit from off-the-record exchanges with the court about logistical matters. The rule does not directly regulate these matters. It requires only that the court exercise its discretion and address the topic in the order of appointment. Similarly difficult questions surround ex parte communications between a master and the parties. Ex parte communications may be essential in seeking to advance settlement. Ex parte communications also may prove useful in other settings, as with in camera review of documents to resolve privilege questions. In most settings, however, ex parte communications with the parties should be discouraged or prohibited. The rule requires that the court address the topic in the order of appointment. Subdivision (b)(2)(C) provides that the appointment order must state the nature of the materials to be preserved and filed as the record of the masters activities, and (b)(2)(D) requires that the order state the method of filing the record. It is not feasible to prescribe the nature of the record without regard to the nature of the masters duties. The records appropriate to discovery duties may be different from those appropriate to encouraging settlement, investigating possible violations of a complex decree, or making recommendations for trial findings. A basic requirement, however, is that the master must make and file a complete record of the evidence considered in making or recommending findings of fact on the basis of evidence. The order of appointment should routinely include this requirement unless the nature of the appointment precludes any prospect that the master will make or recommend evidence-based findings of fact. In some circumstances it may be appropriate for a party to file materials directly with the court as provided by Rule 5(e), but in many circumstances filing with the court may be inappropriate. Confidentiality is important with respect to many materials that may properly be considered by a master. Materials in the record can be transmitted to the court, and filed, in connection with review of a masters order, report, or recommendations under subdivisions (f) and (g). Independently of review proceedings, the court may direct filing of any materials that it wishes to make part of the public record. The provision in subdivision (b)(2)(D) that the order must state the standards for reviewing the masters orders, findings, or recommendations is a reminder of the provisions of subdivision (g)(3) that recognize stipulations for review less searching than the presumptive requirement of de novo decision by the court. Subdivision (b)(2)(D) does not authorize the court to supersede the limits of subdivision (g)(3). In setting the procedure for fixing the masters compensation, it is useful at the outset to establish specific guidelines to control total expense. The court has power under subdivision (h) to change the basis and terms for determining compensation after notice to the parties. Subdivision (b)(3) permits entry of the order appointing a master only after the master has filed an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C.  455. If the affidavit discloses a possible ground for disqualification, the order can enter only if the court determines that there is no ground for disqualification or if the parties, knowing of the ground for disqualification, consent with the courts approval to waive the disqualification. The provision in Rule 53(b)(4) for amending the order of appointment is as important as the provisions for the initial order. Anything that could be done in the initial order can be done by amendment. The hearing requirement can be satisfied by an opportunity to make written submissions unless the circumstances require live testimony. Subdivision (c) Subdivision (d) Subdivision (e) Subdivision (f) Before formally making an order, report, or recommendations, a master may find it helpful to circulate a draft to the parties for review and comment. The usefulness of this practice depends on the nature of the masters proposed action. Subdivision (g) The subdivision (g)(2) time limits for objecting toor seeking adoption or modification ofa masters order, report, or recommendations, are important. They are not jurisdictional. Although a court may properly refuse to entertain untimely review proceedings, the court may excuse the failure to seek timely review. The basic time period is lengthened to 20 days because the present 10-day period may be too short to permit thorough study and response to a complex report dealing with complex litigation. If no party asks the court to act on a masters report, the court is free to adopt the masters action or to disregard it at any relevant point in the proceedings. Subdivision (g)(3) establishes the standards of review for a masters findings of fact or recommended findings of fact. The court must decide de novo all objections to findings of fact made or recommended by the master unless the parties stipulate, with the courts consent, that the findings will be reviewed for clear error orwith respect to a master appointed on the parties consent or appointed to address pretrial or post-trial mattersthat the findings will be final. Clear-error review is more likely to be appropriate with respect to findings that do not go to the merits of the underlying claims or defenses, such as findings of fact bearing on a privilege objection to a discovery request. Even if no objection is made, the court is free to decide the facts de novo; to review for clear error if an earlier approved stipulation provided clear-error review; or to withdraw its consent to a stipulation for clear-error review or finality, and then to decide de novo. If the court withdraws its consent to a stipulation for finality or clear-error review, it may reopen the opportunity to object. Under Rule 53(g)(4), the court must decide de novo all objections to conclusions of law made or recommended by a master. As with findings of fact, the court also may decide conclusions of law de novo when no objection is made. Apart from factual and legal questions, masters often make determinations that, when made by a trial court, would be treated as matters of procedural discretion. The court may set a standard for review of such matters in the order of appointment, and may amend the order to establish the standard. If no standard is set by the original or amended order appointing the master, review of procedural matters is for abuse of discretion. The subordinate role of the master means that the trial courts review for abuse of discretion may be more searching than the review that an appellate court makes of a trial court. If a master makes a recommendation on any matter that does not fall within Rule 53(g)(3), (4), or (5), the court may act on the recommendation under Rule 53(g)(1). Subdivision (h) Payment of the masters fees must be allocated among the parties and any property or subject-matter within the courts control. The amount in controversy and the means of the parties may provide some guidance in making the allocation. The nature of the dispute also may be importantparties pursuing matters of public interest, for example, may deserve special protection. A party whose unreasonable behavior has occasioned the need to appoint a master, on the other hand, may properly be charged all or a major portion of the masters fees. It may be proper to revise an interim allocation after decision on the merits. The revision need not await a decision that is final for purposes of appeal, but may be made to reflect disposition of a substantial portion of the case. The basis and terms for fixing compensation should be stated in the order of appointment. The court retains power to alter the initial basis and terms, after notice and an opportunity to be heard, but should protect the parties against unfair surprise. The provision of former Rule 53(a) that the provision for compensation shall not apply when a United States Magistrate Judge is designated to serve as a master is deleted as unnecessary. Other provisions of law preclude compensation. Subdivision (i) Changes Made After Publication and Comment Subdivision (b)(2) is amended by adding new material to the subparagraph (A), (B,) (C), and (D) specifications of issues that must be addressed in the order appointing a master. (A) now requires a statement of any investigation or enforcement duties. (B) now establishes a presumption that ex parte communications between master and court are limited to administrative matters; the court may, in its discretion, permit ex parte communications on other matters. (C) directs that the order address not only preservation but also filing of the record. (D) requires that the order state the method of filing the record. Subdivision (b)(3) is changed by requiring an opportunity to be heard on an order amending an appointment order. It also is renumbered as (b)(4). Subdivision (b)(4), renumbered as (b)(3), is redrafted to express the original meaning more clearly. Subdivision (c) has a minor style change. Subdivision (g)(1) is amended to state that in acting on a masters recommendations the court must afford an opportunity to be heard. Subdivision (g)(3) is changed to narrow still further the opportunities to depart from de novo determination of objections to a masters findings or recommendations for findings of fact. Subdivision (g)(4) is changed by deleting the opportunity of the parties to stipulate that a masters conclusions of law will be final. Committee Notes on Rules2007 Amendment The language of Rule 53 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment The time set in the former rule at 20 days has been revised to 21 days. See the Note to Rule 6. TITLE VII. JUDGMENT Rule 54. Judgment; Costs (a) Definition; Form. Judgment as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a masters report, or a record of prior proceedings. (b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for reliefwhether as a claim, counterclaim, crossclaim, or third-party claimor when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties rights and liabilities. (c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings. (d) Costs; Attorneys Fees. (1)  Costs Other Than Attorneys Fees. (2)  Attorneys Fees. (A)  Claim to Be by Motion. (B)  Timing and Contents of the Motion. (i) be filed no later than 14 days after the entry of judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made. (C)  Proceedings. (D)  Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. (E)  Exceptions. (As amended Dec. 27, 1946 Mar. 19, 1948 Apr. 17, 1961 July 19, 1961 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Mar. 27, 2003 Dec. 1, 2003 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Note to Subdivision (b) Note to Subdivision (c) English Rules Under the Judicature Act Note to Subdivision (d) Ex parte Peterson Costs in Common Law Actions in the Federal Courts The provisions as to costs in actions in forma pauperis The provisions of the following and similar statutes as to costs against the United States and its officers and agencies are specifically continued: U.S.C., Title 15,  77v(a), 78aa, 79y (Securities and Exchange Commission) U.S.C., Title 16,  825p (Federal Power Commission) U.S.C., Title 26, [former]  1569(d) and 1645(d) (Internal revenue actions) U.S.C., Title 26, [former]  1670(b)(2) (Reimbursement of costs of recovery against revenue officers) U.S.C., Title 28, [former]  817 (Internal revenue actions) U.S.C., Title 28,  836 [now 1915] (United Statesactions in forma pauperis) U.S.C., Title 28,  842 [now 2006] (Actions against revenue officers) U.S.C., Title 28,  870 [now 2408] (United Statesin certain cases) U.S.C., Title 28, [former]  906 (United Statesforeclosure actions) U.S.C., Title 47,  401 (Communications Commission) The provisions of the following and similar statutes as to costs are unaffected: U.S.C., Title 7,  210(f) (Actions for damages based on an order of the Secretary of Agriculture under Stockyards Act) U.S.C., Title 7,  499g(c) (Appeals from reparations orders of Secretary of Agriculture under Perishable Commodities Act) U.S.C., Title 8, [former]  45 (Action against district attorneys in certain cases) U.S.C., Title 15,  15 (Actions for injuries due to violation of antitrust laws) U.S.C., Title 15,  72 (Actions for violation of law forbidding importation or sale of articles at less than market value or wholesale prices) U.S.C., Title 15,  77k (Actions by persons acquiring securities registered with untrue statements under Securities Act of 1933) U.S.C., Title 15,  78i(e) (Certain actions under the Securities Exchange Act of 1934) U.S.C., Title 15,  78r (Similar to 78i(e)) U.S.C., Title 15,  96 (Infringement of trade-markdamages) U.S.C., Title 15,  99 (Infringement of trade-markinjunctions) U.S.C., Title 15,  124 (Infringement of trade-markdamages) U.S.C., Title 19,  274 (Certain actions under customs law) U.S.C., Title 30,  32 (Action to determine right to possession of mineral lands in certain cases) U.S.C., Title 31,  232 [now 3730] and [former] 234 (Action for making false claims upon United States) U.S.C., Title 33,  926 (Actions under Harbor Workers Compensation Act) U.S.C., Title 35,  67 [now 281, 284] (Infringement of patentdamages) U.S.C., Title 35,  69 [now 282] (Infringement of patentpleading and proof) U.S.C., Title 35,  71 [now 288] (Infringement of patentwhen specification too broad) U.S.C., Title 45,  153p (Actions for non-compliance with an order of National R. R. Adjustment Board for payment of money) U.S.C., Title 46, [former]  38 (Action for penalty for failure to register vessel) U.S.C., Title 46, [former]  829 (Action based on non-compliance with an order of Maritime Commission for payment of money) U.S.C., Title 46,  941 [now 31304] (Certain actions under Ship Mortgage Act) U.S.C., Title 46 [App.],  1227 (Actions for damages for violation of certain provisions of the Merchant Marine Act, 1936) U.S.C., Title 47,  206 (Actions for certain violations of Communications Act of 1934) U.S.C., Title 49,  16(2) [see 11704, 15904] (Action based on non-compliance with an order of I. C. C. for payment of money) Notes of Advisory Committee on Rules1946 Amendment The historic rule in the federal courts has always prohibited piecemeal disposal of litigation and permitted appeals only from final judgments except in those special instances covered by statute. Hohorst v. Hamburg-American Packet Co Rexford v. Brunswick-Balke-Collender Co Collins v. Miller Catlin v. United States United States v. Florian Florian v. United States Reeves v. Beardall Unfortunately, this was not always understood, and some confusion ensued. Hence situations arose where district courts made a piecemeal disposition of an action and entered what the parties thought amounted to a judgment, although a trial remained to be had on other claims similar or identical with those disposed of. In the interim the parties did not know their ultimate rights, and accordingly took an appeal, thus putting the finality of the partial judgment in question. While most appellate courts have reached a result generally in accord with the intent of the rule, yet there have been divergent precedents and division of views which have served to render the issues more clouded to the parties appellant. It hardly seems a case where multiplicity of precedents will tend to remove the problem from debate. The problem is presented and discussed in the following cases: Atwater v. North American Coal Corp Rosenblum v. Dingfelder Audi-Vision, Inc. v. RCA Mfg. Co., Inc Zalkind v. Scheinman Oppenheimer v. F. J. Young & Co., Inc Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp Zarati Steamship Co. v. Park Bridge Corp Baltimore and Ohio R. Co. v. United Fuel Gas Co Jefferson Electric Co. v. Sola Electric Co Leonard v. Socony-Vacuum Oil Co Markham v. Kasper Hanney v. Franklin Fire Ins. Co. of Philadelphia Toomey v. Toomey In view of the difficulty thus disclosed, the Advisory Committee in its two preliminary drafts of proposed amendments attempted to redefine the original rule with particular stress upon the interlocutory nature of partial judgments which did not adjudicate all claims arising out of a single transaction or occurrence. This attempt appeared to meet with almost universal approval from those of the profession commenting upon it, although there were, of course, helpful suggestions for additional changes in language or clarification of detail. But cf Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp., supra Notes of Advisory Committee on Rules1961 Amendment This rule permitting appeal, upon the trial courts determination of no just reason for delay, from a judgment upon one or more but fewer than all the claims in an action, has generally been given a sympathetic construction by the courts and its validity is settled. Reeves v. Beardall Sears, Roebuck & Co. v. Mackey Cold Metal Process Co. v. United Engineering & Foundry Co A serious difficulty has, however, arisen because the rule speaks of claims but nowhere mentions parties. A line of cases has developed in the circuits consistently holding the rule to be inapplicable to the dismissal, even with the requisite trial court determination, of one or more but fewer than all defendants jointly charged in an action, i.e Mull v. Ackerman Richards v. Smith Hardy v. Bankers Life & Cas. Co Steiner v. 20th Century-Fox Film Corp cf. United Artists Corp. v. Masterpiece Productions, Inc Bowling Machines, Inc. v. First Nat. Bank The danger of hardship through delay of appeal until the whole action is concluded may be at least as serious in the multiple-parties situations as in multiple-claims cases, see Pabellon v. Grace Line, Inc cert. denied Reagan v. Traders & General Ins. Co Meadows v. Greyhound Corp Steiner v. 20th Century-Fox Film Corp., supra Moores Federal Practice Federal Practice & Procedure Developments in the LawMultiparty Litigation There has been some recent indication that interlocutory appeal under the provisions of 28 U.S.C.  1292(b), added in 1958, may now be available for the multiple-parties cases here considered. See Jaftex Corp. v. Randolph Mills, Inc Luckenbach Steamship Co., Inc., v. H. Muehlstein & Co., Inc supra Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment Subdivision (d) Paragraph (1) Paragraph (2) Cf. West Virginia Univ. Hosp. v. Casey Subparagraph (B) provides a deadline for motions for attorneys fees14 days after final judgment unless the court or a statute specifies some other time. One purpose of this provision is to assure that the opposing party is informed of the claim before the time for appeal has elapsed. Prior law did not prescribe any specific time limit on claims for attorneys fees. White v. New Hampshire Dept of Employment Sec Prompt filing affords an opportunity for the court to resolve fee disputes shortly after trial, while the services performed are freshly in mind. It also enables the court in appropriate circumstances to make its ruling on a fee request in time for any appellate review of a dispute over fees to proceed at the same time as review on the merits of the case. Filing a motion for fees under this subdivision does not affect the finality or the appealability of a judgment, though revised Rule 58 provides a mechanism by which prior to appeal the court can suspend the finality to resolve a motion for fees. If an appeal on the merits of the case is taken, the court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice, directing under subdivision (d)(2)(B) a new period for filing after the appeal has been resolved. A notice of appeal does not extend the time for filing a fee claim based on the initial judgment, but the court under subdivision (d)(2)(B) may effectively extend the period by permitting claims to be filed after resolution of the appeal. A new period for filing will automatically begin if a new judgment is entered following a reversal or remand by the appellate court or the granting of a motion under Rule 59. The rule does not require that the motion be supported at the time of filing with the evidentiary material bearing on the fees. This material must of course be submitted in due course, according to such schedule as the court may direct in light of the circumstances of the case. What is required is the filing of a motion sufficient to alert the adversary and the court that there is a claim for fees and the amount of such fees (or a fair estimate). If directed by the court, the moving party is also required to disclose any fee agreement, including those between attorney and client, between attorneys sharing a fee to be awarded, and between adversaries made in partial settlement of a dispute where the settlement must be implemented by court action as may be required by Rules 23(e) and 23.1 or other like provisions. With respect to the fee arrangements requiring court approval, the court may also by local rule require disclosure immediately after such arrangements are agreed to. E.g cf. In re Agent Orange Product Liability Litigation (MDL 381) In the settlement of class actions resulting in a common fund from which fees will be sought, courts frequently have required that claims for fees be presented in advance of hearings to consider approval of the proposed settlement. The rule does not affect this practice, as it permits the court to require submissions of fee claims in advance of entry of judgment. Subparagraph (C) assures the parties of an opportunity to make an appropriate presentation with respect to issues involving the evaluation of legal services. In some cases, an evidentiary hearing may be needed, but this is not required in every case. The amount of time to be allowed for the preparation of submissions both in support of and in opposition to awards should be tailored to the particular case. The court is explicitly authorized to make a determination of the liability for fees before receiving submissions by the parties bearing on the amount of an award. This option may be appropriate in actions in which the liability issue is doubtful and the evaluation issues are numerous and complex. The court may order disclosure of additional information, such as that bearing on prevailing local rates or on the appropriateness of particular services for which compensation is sought. On rare occasion, the court may determine that discovery under Rules 2637 would be useful to the parties. Compare See Determining the Reasonableness of Attorneys Feesthe Discoverability of Billing Records B.U.L. Rev Fee awards should be made in the form of a separate judgment under Rule 58 since such awards are subject to review in the court of appeals. To facilitate review, the paragraph provides that the court set forth its findings and conclusions as under Rule 52(a), though in most cases this explanation could be quite brief. Subparagraph (D) explicitly authorizes the court to establish procedures facilitating the efficient and fair resolution of fee claims. A local rule, for example, might call for matters to be presented through affidavits, or might provide for issuance of proposed findings by the court, which would be treated as accepted by the parties unless objected to within a specified time. A court might also consider establishing a schedule reflecting customary fees or factors affecting fees within the community, as implicitly suggested by Justice OConnor in Pennsylvania v. Delaware Valley Citizens Council Cf. Thompson v. Kennickell The rule also explicitly permits, without need for a local rule, the court to refer issues regarding the amount of a fee award in a particular case to a master under Rule 53. The district judge may designate a magistrate judge to act as a master for this purpose or may refer a motion for attorneys fees to a magistrate judge for proposed findings and recommendations under Rule 72(b). This authorization eliminates any controversy as to whether such references are permitted under Rule 53(b) as matters of account and of difficult computation of damages and whether motions for attorneys fees can be treated as the equivalent of a dispositive pretrial matter that can be referred to a magistrate judge. For consistency and efficiency, all such matters might be referred to the same magistrate judge. Subparagraph (E) excludes from this rule the award of fees as sanctions under these rules or under 28 U.S.C.  1927. Committee Notes on Rules2002 Amendment Subdivision (d)(2)(C) is amended to delete the requirement that judgment on a motion for attorney fees be set forth in a separate document. This change complements the amendment of Rule 58(a)(1), which deletes the separate document requirement for an order disposing of a motion for attorney fees under Rule 54. These changes are made to support amendment of Rule 4 of the Federal Rules of Appellate Procedure. It continues to be important that a district court make clear its meaning when it intends an order to be the final disposition of a motion for attorney fees. The requirement in subdivision (d)(2)(B) that a motion for attorney fees be not only filed but also served no later than 14 days after entry of judgment is changed to require filing only, to establish a parallel with Rules 50, 52, and 59. Service continues to be required under Rule 5(a). Committee Notes on Rules2003 Amendment Rule 54(d)(2)(D) is revised to reflect amendments to Rule 53. Committee Notes on Rules2007 Amendment The language of Rule 54 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The words or class member have been removed from Rule 54(d)(2)(C) because Rule 23(h)(2) now addresses objections by class members to attorney-fee motions. Rule 54(d)(2)(C) is amended to recognize that Rule 23(h) now controls those aspects of attorney-fee motions in class actions to which it is addressed. Committee Notes on Rules2009 Amendment Former Rule 54(d)(1) provided that the clerk may tax costs on 1 days notice. That period was unrealistically short. The new 14-day period provides a better opportunity to prepare and present a response. The former 5-day period to serve a motion to review the clerks action is extended to 7 days to reflect the change in the Rule 6(a) method for computing periods of less than 11 days. Rule 55. Default; Default Judgment (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the partys default. (b) Entering a Default Judgment. (1)  By the Clerk. (2)  By the Court. (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter. (c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b). (d) Judgment Against the United States. A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court. (As amended Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 29, 2015 Dec. 1, 2015  Notes of Advisory Committee on Rules1937 This represents the joining of the equity decree pro confesso Pro Confesso Pro Confesso Note to Subdivision (a) Note to Subdivision (b) supra Note to Subdivision (e) Notes of Advisory Committee on Rules1946 Supplementary Note Note et seq 50 U.S.C. 3901 e.g., Ledwith v. Storkan Effect of Conscription Legislation on the Federal Rules Moores Federal Practice Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 55 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 55(a) directed the clerk to enter a default when a party failed to plead or otherwise defend as provided by these rules. The implication from the reference to defending as provided by these rules seemed to be that the clerk should enter a default even if a party did something showing an intent to defend, but that act was not specifically described by the rules. Courts in fact have rejected that implication. Acts that show an intent to defend have frequently prevented a default even though not connected to any particular rule. [A]s provided by these rules is deleted to reflect Rule 55(a)s actual meaning. Amended Rule 55 omits former Rule 55(d), which included two provisions. The first recognized that Rule 55 applies to described claimants. The list was incomplete and unnecessary. Rule 55(a) applies Rule 55 to any party against whom a judgment for affirmative relief is requested. The second provision was a redundant reminder that Rule 54(c) limits the relief available by default judgment. Committee Notes on Rules2009 Amendment The time set in the former rule at 3 days has been revised to 7 days. See the Note to Rule 6. Committee Notes on Rules2015 Amendment Rule 55(c) is amended to make plain the interplay between Rules 54(b), 55(c), and 60(b). A default judgment that does not dispose of all of the claims among all parties is not a final judgment unless the court directs entry of final judgment under Rule 54(b). Until final judgment is entered, Rule 54(b) allows revision of the default judgment at any time. The demanding standards set by Rule 60(b) apply only in seeking relief from a final judgment. Rule 56. Summary Judgment (a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defenseor the part of each claim or defenseon which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. (c) Procedures. (1)  Supporting Factual Positions. (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2)  Objection That a Fact Is Not Supported by Admissible Evidence. (3)  Materials Not Cited. (4)  Affidavits or Declarations. (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another partys assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materialsincluding the facts considered undisputedshow that the movant is entitled to it; or (4) issue any other appropriate order. (f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. (g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material factincluding an item of damages or other reliefthat is not genuinely in dispute and treating the fact as established in the case. (h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the courtafter notice and a reasonable time to respondmay order the submitting party to pay the other party the reasonable expenses, including attorneys fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 28, 2010 Dec. 1, 2010  Notes of Advisory Committee on Rules1937 This rule is applicable to all actions, including those against the United States or an officer or agency thereof. Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. It has been extensively used in England for more than 50 years and has been adopted in a number of American states. New York, for example, has made great use of it. During the first nine years after its adoption there, the records of New York county alone show 5,600 applications for summary judgments. Report of the Commission on the Administration of Justice in New York State Third Annual Report of the Judicial Council of the State of New York In England it was first employed only in cases of liquidated claims, but there has been a steady enlargement of the scope of the remedy until it is now used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts and breach of promise of marriage. English Rules Under the Judicature Act The Summary Judgment Note to Subdivision (d) Note Note to Subdivisions (e) and (f) Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) Peoples Bank v. Federal Reserve Bank of San Francisco United States v. Adlers Creamery, Inc Subdivision (c) Sartor v. Arkansas Natural Gas Corp Summary Judgment as to Damages Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co Subdivision (d) Leonard v. Socony-Vacuum Oil Co Biggins v. Oltmer Iron Works Moores Federal Practice Moore, op. cit. supra Leonard v. Socony-Vacuum Oil Co., supra Audi Vision Inc., v. RCA Mfg. Co Toomey v. Toomey Biggins v. Oltmer Iron Works, supra; Catlin v. United States Notes of Advisory Committee on Rules1963 Amendment Subdivision (c) Federal Practice and Procedure Subdivision (e) The last two sentences are added to overcome a line of cases, chiefly in the Third Circuit, which has impaired the utility of the summary judgment device. A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matters sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. In this situation Third Circuit cases have taken the view that summary judgment must be denied, at least if the averments are well-pleaded, and not suppositious, conclusory, or ultimate. See Frederick Hart & Co., Inc. v. Recordgraph Corp United States ex rel. Kolton v. Halpern United States ex rel. Nobles v. Ivey Bros. Constr. Co., Inc Jamison v. Pennsylvania Salt Mfg. Co Bunny Bear, Inc. v. Dennis Mitchell Industries Levy v. Equitable Life Assur. Society The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. See 6 Moores Federal Practice It is hoped that the amendment will contribute to the more effective utilization of the salutary device of summary judgment. The amendment is not intended to derogate from the solemnity of the pleadings. Rather it recognizes that, despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary. Nor is the amendment designed to affect the ordinary standards applicable to the summary judgment motion. So, for example: Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (f) that he cannot at the time present facts essential to justify his opposition. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 56 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 56(a) and (b) referred to summary-judgment motions on or against a claim, counterclaim, or crossclaim, or to obtain a declaratory judgment. The list was incomplete. Rule 56 applies to third-party claimants, intervenors, claimants in interpleader, and others. Amended Rule 56(a) and (b) carry forward the present meaning by referring to a party claiming relief and a party against whom relief is sought. Former Rule 56(c), (d), and (e) stated circumstances in which summary judgment shall be rendered, the court shall if practicable ascertain facts existing without substantial controversy, and if appropriate, shall enter summary judgment. In each place shall is changed to should. It is established that although there is no discretion to enter summary judgment when there is a genuine issue as to any material fact, there is discretion to deny summary judgment when it appears that there is no genuine issue as to any material fact. Kennedy v. Silas Mason Co. Former Rule 56(d) used a variety of different phrases to express the Rule 56(c) standard for summary judgmentthat there is no genuine issue as to any material fact. Amended Rule 56(d) adopts terms directly parallel to Rule 56(c). Committee Notes on Rules2009 Amendment The timing provisions for summary judgment are outmoded. They are consolidated and substantially revised in new subdivision (c)(1). The new rule allows a party to move for summary judgment at any time, even as early as the commencement of the action. If the motion seems premature both subdivision (c)(1) and Rule 6(b) allow the court to extend the time to respond. The rule does set a presumptive deadline at 30 days after the close of all discovery. The presumptive timing rules are default provisions that may be altered by an order in the case or by local rule. Scheduling orders are likely to supersede the rule provisions in most cases, deferring summary-judgment motions until a stated time or establishing different deadlines. Scheduling orders tailored to the needs of the specific case, perhaps adjusted as it progresses, are likely to work better than default rules. A scheduling order may be adjusted to adopt the parties agreement on timing, or may require that discovery and motions occur in stagesincluding separation of expert-witness discovery from other discovery. Local rules may prove useful when local docket conditions or practices are incompatible with the general Rule 56 timing provisions. If a motion for summary judgment is filed before a responsive pleading is due from a party affected by the motion, the time for responding to the motion is 21 days after the responsive pleading is due. Committee Notes on Rules2010 Amendment Rule 56 is revised to improve the procedures for presenting and deciding summary-judgment motions and to make the procedures more consistent with those already used in many courts. The standard for granting summary judgment remains unchanged. The language of subdivision (a) continues to require that there be no genuine dispute as to any material fact and that the movant be entitled to judgment as a matter of law. The amendments will not affect continuing development of the decisional law construing and applying these phrases. Subdivision (a). The first sentence is added to make clear at the beginning that summary judgment may be requested not only as to an entire case but also as to a claim, defense, or part of a claim or defense. The subdivision caption adopts the common phrase partial summary judgment to describe disposition of less than the whole action, whether or not the order grants all the relief requested by the motion. Shall is restored to express the direction to grant summary judgment. The word shall in Rule 56 acquired significance over many decades of use. Rule 56 was amended in 2007 to replace shall with should as part of the Style Project, acting under a convention that prohibited any use of shall. Comments on proposals to amend Rule 56, as published in 2008, have shown that neither of the choices available under the Style Project conventionsmust or shouldis suitable in light of the case law on whether a district court has discretion to deny summary judgment when there appears to be no genuine dispute as to any material fact. Compare Anderson v. Liberty Lobby, Inc. Kennedy v. Silas Mason Co. Celotex Corp. v. Catrett Subdivision (a) also adds a new direction that the court should state on the record the reasons for granting or denying the motion. Most courts recognize this practice. Among other advantages, a statement of reasons can facilitate an appeal or subsequent trial-court proceedings. It is particularly important to state the reasons for granting summary judgment. The form and detail of the statement of reasons are left to the courts discretion. The statement on denying summary judgment need not address every available reason. But identification of central issues may help the parties to focus further proceedings. Subdivision (b). Subdivision (c). Subdivision (c)(1) addresses the ways to support an assertion that a fact can or cannot be genuinely disputed. It does not address the form for providing the required support. Different courts and judges have adopted different forms including, for example, directions that the support be included in the motion, made part of a separate statement of facts, interpolated in the body of a brief or memorandum, or provided in a separate statement of facts included in a brief or memorandum. Subdivision (c)(1)(A) describes the familiar record materials commonly relied upon and requires that the movant cite the particular parts of the materials that support its fact positions. Materials that are not yet in the recordincluding materials referred to in an affidavit or declarationmust be placed in the record. Once materials are in the record, the court may, by order in the case, direct that the materials be gathered in an appendix, a party may voluntarily submit an appendix, or the parties may submit a joint appendix. The appendix procedure also may be established by local rule. Pointing to a specific location in an appendix satisfies the citation requirement. So too it may be convenient to direct that a party assist the court in locating materials buried in a voluminous record. Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials. One party, without citing any other materials, may respond or reply that materials cited to dispute or support a fact do not establish the absence or presence of a genuine dispute. And a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact. Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial. Subdivision (c)(3) reflects judicial opinions and local rules provisions stating that the court may decide a motion for summary judgment without undertaking an independent search of the record. Nonetheless, the rule also recognizes that a court may consider record materials not called to its attention by the parties. Subdivision (c)(4) carries forward some of the provisions of former subdivision (e)(1). Other provisions are relocated or omitted. The requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be attached to the affidavit or declaration is omitted as unnecessary given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be supported by materials in the record. A formal affidavit is no longer required. 28 U.S.C.  1746 allows a written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit. Subdivision (d). A party who seeks relief under subdivision (d) may seek an order deferring the time to respond to the summary-judgment motion. Subdivision (e). Subdivision (e)(2) authorizes the court to consider a fact as undisputed for purposes of the motion when response or reply requirements are not satisfied. This approach reflects the deemed admitted provisions in many local rules. The fact is considered undisputed only for purposes of the motion; if summary judgment is denied, a party who failed to make a proper Rule 56 response or reply remains free to contest the fact in further proceedings. And the court may choose not to consider the fact as undisputed, particularly if the court knows of record materials that show grounds for genuine dispute. Subdivision (e)(3) recognizes that the court may grant summary judgment only if the motion and supporting materialsincluding the facts considered undisputed under subdivision (e)(2)show that the movant is entitled to it. Considering some facts undisputed does not of itself allow summary judgment. If there is a proper response or reply as to some facts, the court cannot grant summary judgment without determining whether those facts can be genuinely disputed. Once the court has determined the set of factsboth those it has chosen to consider undisputed for want of a proper response or reply and any that cannot be genuinely disputed despite a procedurally proper response or replyit must determine the legal consequences of these facts and permissible inferences from them. Subdivision (e)(4) recognizes that still other orders may be appropriate. The choice among possible orders should be designed to encourage proper presentation of the record. Many courts take extra care with pro se litigants, advising them of the need to respond and the risk of losing by summary judgment if an adequate response is not filed. And the court may seek to reassure itself by some examination of the record before granting summary judgment against a pro se litigant. Subdivision (f). Subdivision (g). If it is readily apparent that the court cannot grant all the relief requested by the motion, it may properly decide that the cost of determining whether some potential fact disputes may be eliminated by summary disposition is greater than the cost of resolving those disputes by other means, including trial. Even if the court believes that a fact is not genuinely in dispute it may refrain from ordering that the fact be treated as established. The court may conclude that it is better to leave open for trial facts and issues that may be better illuminated by the trial of related facts that must be tried in any event. Subdivision (h). See April 2, 2007 Changes Made After Publication and Comment. Subdivision (a). [T]he movant shows that was added. Language about identifying the claim or defense was moved up from subdivision (c)(1) as published. Subdivision (b). Words referring to an order in the case were deleted. Subdivision (c). The requirement that the court give notice before granting summary judgment on the basis of record materials not cited by the parties was deleted. The provision that a party may accept or dispute a fact for purposes of the motion only was deleted. Subdivision (e). Subdivision (f). Subdivision (h). Other changes. Rule 57. Declaratory Judgment  These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C.  2201. Rules 38 and 39 govern a demand for a jury trial. The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. The court may order a speedy hearing of a declaratory-judgment action. (As amended Dec. 29, 1948 Oct. 20, 1949 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 The fact that a declaratory judgment may be granted whether or not further relief is or could be prayed indicates that declaratory relief is alternative or cumulative and not exclusive or extraordinary. A declaratory judgment is appropriate when it will terminate the controversy giving rise to the proceeding. Inasmuch as it often involves only an issue of law on undisputed or relatively undisputed facts, it operates frequently as a summary proceeding, justifying docketing the case for early hearing as on a motion, as provided for in California (Code Civ.Proc. (Deering, 1937)  1062a), Michigan (3 Comp.Laws (1929)  13904), and Kentucky (Codes (Carroll, 1932) Civ.Pract.  639a3). The controversy must necessarily be of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts. Ashwander v. Tennessee Valley Authority When declaratory relief will not be effective in settling the controversy, the court may decline to grant it. But the fact that another remedy would be equally effective affords no ground for declining declaratory relief. The demand for relief shall state with precision the declaratory judgment desired, to which may be joined a demand for coercive relief, cumulatively or in the alternative; but when coercive relief only is sought but is deemed ungrantable or inappropriate, the court may sua sponte Hasselbring v. Koepke Aetna Life Insurance Co. v. Haworth Nashville, Chattanooga & St. Louis Ry. v. Wallace Gully, Tax Collector v. Interstate Natural Gas Co Ohio Casualty Ins. Co. v. Plummer passim. Notes of Advisory Committee on Rules1948 Amendment The amendment substitutes the present statutory reference. Committee Notes on Rules2007 Amendment The language of Rule 57 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 58. Entering Judgment (a) Separate Document. Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for an order disposing of a motion: (1) for judgment under Rule 50(b); (2) to amend or make additional findings under Rule 52(b); (3) for attorneys fees under Rule 54; (4) for a new trial, or to alter or amend the judgment, under Rule 59; or (5) for relief under Rule 60. (b) Entering Judgment. (1)  Without the Courts Direction. (A) the jury returns a general verdict; (B) the court awards only costs or a sum certain; or (C) the court denies all relief. (2)  Courts Approval Required. (A) the jury returns a special verdict or a general verdict with answers to written questions; or (B) the court grants other relief not described in this subdivision (b). (c) Time of Entry. For purposes of these rules, judgment is entered at the following times: (1) if a separate document is not required, when the judgment is entered in the civil docket under Rule 79(a); or (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket. (d) Request for Entry. A party may request that judgment be set out in a separate document as required by Rule 58(a). (e) Cost or Fee Awards. Ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a timely motion for attorneys fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 2002 Dec. 1, 2002 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 See Wis.Stat. (1935)  270.31 (judgment entered forthwith on verdict of jury unless otherwise ordered),  270.65 (where trial is by the court, entered by direction of the court),  270.63 (entered by clerk on judgment on admitted claim for money). Compare 1 Idaho Code Ann. (1932)  71101, and 4 Mont.Rev.Codes Ann. (1935)  9403, which provides that judgment in jury cases be entered by clerk within 24 hours after verdict unless court otherwise directs. Conn. Practice Book (1934)  200, provides that all judgments shall be entered within one week after rendition. In some States such as Washington, 2 Rev.Stat.Ann. (Remington, 1932)  431, in jury cases the judgment is entered two days after the return of verdict to give time for making motion for new trial;  435 ( ibid Notes of Advisory Committee on Rules1946 Amendment The reference to Rule 54(b) is made necessary by the amendment of that rule. Two changes have been made in Rule 58 in order to clarify the practice. The substitution of the more inclusive phrase all relief be denied for the words there be no recovery, makes it clear that the clerk shall enter the judgment forthwith in the situations specified without awaiting the filing of a formal judgment approved by the court. The phrase all relief be denied covers cases such as the denial of a bankrupts discharge and similar situations where the relief sought is refused but there is literally no denial of a recovery. The addition of the last sentence in the rule emphasizes that judgments are to be entered promptly by the clerk without waiting for the taxing of costs. Certain district court rules, for example, Civil Rule 22 of the Southern District of New Yorkuntil its annulment Oct. 1, 1945 Fowler v. Hamill Craig v. The Hartford Tuttle v. Claflin Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co Stallo v. Wagner Brown v. Parker Allis-Chalmers v. United States United States v. Nordbye (The Washington Commissioner of Internal Revenue v. Bedfords Estate Notes of Advisory Committee on Rules1963 Amendment Under the present rule a distinction has sometimes been made between judgments on general jury verdicts, on the one hand, and, on the other, judgments upon decisions of the court that a party shall recover only money or costs or that all relief shall be denied. In the first situation, it is clear that the clerk should enter the judgment without awaiting a direction by the court unless the court otherwise orders. In the second situation it was intended that the clerk should similarly enter the judgment forthwith upon the courts decision; but because of the separate listing in the rule, and the use of the phrase upon receipt . . . of the direction, the rule has sometimes been interpreted as requiring the clerk to await a separate direction of the court. All these judgments are usually uncomplicated, and should be handled in the same way. The amended rule accordingly deals with them as a single group in clause (1) (substituting the expression only a sum certain for the present expression only money), and requires the clerk to prepare, sign, and enter them forthwith, without awaiting court direction, unless the court makes a contrary order. (The clerks duty is ministerial and may be performed by a deputy clerk in the name of the clerk. See 28 U.S.C.  956; cf. Gilbertson v. United States Rule 58 is designed to encourage all reasonable speed in formulating and entering the judgment when the case has been decided. Participation by the attorneys through the submission of forms of judgment involves needless expenditure of time and effort and promotes delay, except in special cases where counsels assistance can be of real value. See Matteson v. United States Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e.g., the plaintiffs motion [for summary judgment] is granted, see United States v. F. & M. Schaefer Brewing Co id.; compare Blanchard v. Commonwealth Oil Co United States v. Higginson Danzig v. Virgin Isle Hotel, Inc Sears v. Austin Matteson v. United States, supra; Erstling v. Southern Bell Tel. & Tel. Co Barta v. Oglala Sioux Tribe cert. denied Beacon Fed. S. & L. Assn. v. Federal Home L. Bank Bd Ram v. Paramount Film D. Corp The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate documentdistinct from any opinion or memorandumwhich provides the basis for the entry of judgment. That judgments shall be on separate documents is also indicated in Rule 79(b); and see General Rule 10 of the U.S. District Courts for the Eastern and Southern Districts of New York; Ram v. Paramount Film D. Corp., supra See the amendment of Rule 79(a) and the new specimen forms of judgment, Forms 31 and 32. See also Rule 55(b)(1) and (2) covering the subject of judgments by default. Notes of Advisory Committee on Rules1993 Amendment Ordinarily the pendency or post-judgment filing of a claim for attorneys fees will not affect the time for appeal from the underlying judgment. See Budinich v. Becton Dickinson & Co Committee Notes on Rules2002 Amendment Rule 58 has provided that a judgment is effective only when set forth on a separate document and entered as provided in Rule 79(a). This simple separate document requirement has been ignored in many cases. The result of failure to enter judgment on a separate document is that the time for making motions under Rules 50, 52, 54(d)(2)(B), 59, and some motions under Rule 60, never begins to run. The time to appeal under Appellate Rule 4(a) also does not begin to run. There have been few visible problems with respect to Rule 50, 52, 54(d)(2)(B), 59, or 60 motions, but there have been many and horridly confused problems under Appellate Rule 4(a). These amendments are designed to work in conjunction with Appellate Rule 4(a) to ensure that appeal time does not linger on indefinitely, and to maintain the integration of the time periods set for Rules 50, 52, 54(d)(2)(B), 59, and 60 with Appellate Rule 4(a). Rule 58(a) preserves the core of the present separate document requirement, both for the initial judgment and for any amended judgment. No attempt is made to sort through the confusion that some courts have found in addressing the elements of a separate document. It is easy to prepare a separate document that recites the terms of the judgment without offering additional explanation or citation of authority. Forms 31 and 32 provide examples. Rule 58 is amended, however, to address a problem that arises under Appellate Rule 4(a). Some courts treat such orders as those that deny a motion for new trial as a judgment, so that appeal time does not start to run until the order is entered on a separate document. Without attempting to address the question whether such orders are appealable, and thus judgments as defined by Rule 54(a), the amendment provides that entry on a separate document is not required for an order disposing of the motions listed in Appellate Rule 4(a). The enumeration of motions drawn from the Appellate Rule 4(a) list is generalized by omitting details that are important for appeal time purposes but that would unnecessarily complicate the separate document requirement. As one example, it is not required that any of the enumerated motions be timely. Many of the enumerated motions are frequently made before judgment is entered. The exemption of the order disposing of the motion does not excuse the obligation to set forth the judgment itself on a separate document. And if disposition of the motion results in an amended judgment, the amended judgment must be set forth on a separate document. Rule 58(b) discards the attempt to define the time when a judgment becomes effective. Taken in conjunction with the Rule 54(a) definition of a judgment to include any order from which an appeal lies, the former Rule 58 definition of effectiveness could cause strange difficulties in implementing pretrial orders that are appealable under interlocutory appeal provisions or under expansive theories of finality. Rule 58(b) replaces the definition of effectiveness with a new provision that defines the time when judgment is entered. If judgment is promptly set forth on a separate document, as should be done when required by Rule 58(a)(1), the new provision will not change the effect of Rule 58. But in the cases in which court and clerk fail to comply with this simple requirement, the motion time periods set by Rules 50, 52, 54, 59, and 60 begin to run after expiration of 150 days from entry of the judgment in the civil docket as required by Rule 79(a). A companion amendment of Appellate Rule 4(a)(7) integrates these changes with the time to appeal. The new all-purpose definition of the entry of judgment must be applied with common sense to other questions that may turn on the time when judgment is entered. If the 150-day provision in Rule 58(b)(2)(B)designed to integrate the time for post-judgment motions with appeal timeserves no purpose, or would defeat the purpose of another rule, it should be disregarded. In theory, for example, the separate document requirement continues to apply to an interlocutory order that is appealable as a final decision under collateral-order doctrine. Appealability under collateral-order doctrine should not be complicated by failure to enter the order as a judgment on a separate documentthere is little reason to force trial judges to speculate about the potential appealability of every order, and there is no means to ensure that the trial judge will always reach the same conclusion as the court of appeals. Appeal time should start to run when the collateral order is entered without regard to creation of a separate document and without awaiting expiration of the 150 days provided by Rule 58(b)(2). Drastic surgery on Rules 54(a) and 58 would be required to address this and related issues, however, and it is better to leave this conundrum to the pragmatic disregard that seems its present fate. The present amendments do not seem to make matters worse, apart from one false appearance. If a pretrial order is set forth on a separate document that meets the requirements of Rule 58(b), the time to move for reconsideration seems to begin to run, perhaps years before final judgment. And even if there is no separate document, the time to move for reconsideration seems to begin 150 days after entry in the civil docket. This apparent problem is resolved by Rule 54(b), which expressly permits revision of all orders not made final under Rule 54(b) at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. New Rule 58(d) replaces the provision that attorneys shall not submit forms of judgment except on direction of the court. This provision was added to Rule 58 to avoid the delays that were frequently encountered by the former practice of directing the attorneys for the prevailing party to prepare a form of judgment, and also to avoid the occasionally inept drafting that resulted from attorney-prepared judgments. See 11 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d,  2786 Changes Made After Publication and Comments. Committee Notes on Rules2007 Amendment The language of Rule 58 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.  References in Text The Federal Rules of Appellate Procedure, referred to in subd. (e), are set out in this Appendix. Rule 59. New Trial; Altering or Amending a Judgment (a) In General. (1)  Grounds for New Trial. (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. (2)  Further Action After a Nonjury Trial. (b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment. (c) Time to Serve Affidavits. When a motion for a new trial is based on affidavits, they must be filed with the motion. The opposing party has 14 days after being served to file opposing affidavits. The court may permit reply affidavits. (d) New Trial on the Courts Initiative or for Reasons Not in the Motion. No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a partys motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event, the court must specify the reasons in its order. (e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. (As amended Dec. 27, 1946 Mar. 19, 1948 Feb. 28, 1966 July 1, 1966 Apr. 27, 1995 Dec. 1, 1995 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 This rule represents an amalgamation of the petition for rehearing of [former] Equity Rule 69 (Petition for Rehearing) and the motion for new trial of U.S.C., Title 28,  391 [see 2111] (New trials; harmless error), made in the light of the experience and provision of the code States. Compare Calif.Code Civ.Proc. (Deering, 1937)  656663a, U.S.C., Title 28,  391 [see 2111] (New trials; harmless error) is thus substantially continued in this rule. U.S.C., Title 28, [former]  840 (Executions; stay on conditions) is modified insofar as it contains time provisions inconsistent with Subdivision (b) Morse v. United States Aspen Mining and Smelting Co. v. Billings For partial new trials which are permissible under Subdivision (a) Gasoline Products Co., Inc., v. Champlin Refining Co Schuerholz v. Roach Simmons v. Fish contra Notes of Advisory Committee on Rules1946 Amendment Subdivision (b) As to the effect of a motion under subdivision (b) upon the running of appeal time, see amended Rule 73(a) and Note. Subdivision (e) Boaz v. Mutual Life Ins. Co. of New York The title of Rule 59 has been expanded to indicate the inclusion of this subdivision. Notes of Advisory Committee on Rules1966 Amendment By narrow interpretation of Rule 59(b) and (d), it has been held that the trial court is without power to grant a motion for a new trial, timely served, by an order made more than 10 days after the entry of judgment, based upon a ground not stated in the motion but perceived and relied on by the trial court sua sponte. Freid v. McGrath National Farmers Union Auto. & Cas. Co. v. Wood Bailey v. Slentz Marshalls U.S. Auto Supply, Inc. v. Cashman Steinberg v. Indemnity Ins. Co The result is undesirable. Just as the court has power under Rule 59(d) to grant a new trial of its own initiative within the 10 days, so it should have power, when an effective new trial motion has been made and is pending, to decide it on grounds thought meritorious by the court although not advanced in the motion. The second sentence added by amendment to Rule 59(d) confirms the courts power in the latter situation, with provision that the parties be afforded a hearing before the power is exercised. See 6 Moores Federal Practice In considering whether a given ground has or has not been advanced in the motion made by the party, it should be borne in mind that the particularity called for in stating the grounds for a new trial motion is the same as that required for all motions by Rule 7(b)(1). The latter rule does not require ritualistic detail but rather a fair indication to court and counsel of the substance of the grounds relied on. See Lebeck v. William A. Jarvis Co Tsai v. Rosenthal General Motors Corp. v. Perry cf. Grimm v. California Spray-Chemical Corp Cooper v. Midwest Feed Products Co Notes of Advisory Committee on Rules1995 Amendment The only change, other than stylistic, intended by this revision is to add explicit time limits for filing motions for a new trial, motions to alter or amend a judgment, and affidavits opposing a new trial motion. Previously, there was an inconsistency in the wording of Rules 50, 52, and 59 with respect to whether certain post-judgment motions had to be filed, or merely served, during the prescribed period. This inconsistency caused special problems when motions for a new trial were joined with other post-judgment motions. These motions affect the finality of the judgment, a matter often of importance to third persons as well as the parties and the court. The Committee believes that each of these rules should be revised to require filing before end of the 10-day period. Filing is an event that can be determined with certainty from court records. The phrase no later than is usedrather than withinto include post-judgment motions that sometimes are filed before actual entry of the judgment by the clerk. It should be noted that under Rule 5 the motions when filed are to contain a certificate of service on other parties. It also should be noted that under Rule 6(a) Saturdays, Sundays, and legal holidays are excluded in measuring the 10-day period, but that Bankruptcy Rule 9006(a) excludes intermediate Saturdays, Sundays, and legal holidays only in computing periods less than 8 days. Committee Notes on Rules2007 Amendment The language of Rule 59 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Former Rules 50, 52, and 59 adopted 10-day periods for their respective post-judgment motions. Rule 6(b) prohibits any expansion of those periods. Experience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days. Rule 6(b) continues to prohibit expansion of the 28-day period. Former Rule 59(c) set a 10-day period after being served with a motion for new trial to file opposing affidavits. It also provided that the period could be extended for up to 20 days for good cause or by stipulation. The apparent 20-day limit on extending the time to file opposing affidavits seemed to conflict with the Rule 6(b) authority to extend time without any specific limit. This tension between the two rules may have been inadvertent. It is resolved by deleting the former Rule 59(c) limit. Rule 6(b) governs. The underlying 10-day period was extended to 14 days to reflect the change in the Rule 6(a) method for computing periods of less than 11 days. Changes Made after Publication and Comment. Rule 60. Relief from a Judgment or Order (a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate courts leave. (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. (c) Timing and Effect of the Motion. (1)  Timing. (2)  Effect on Finality. (d) Other Powers to Grant Relief. This rule does not limit a courts power to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; (2) grant relief under 28 U.S.C.  1655 to a defendant who was not personally notified of the action; or (3) set aside a judgment for fraud on the court. (e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Note to Subdivision (b) For the independent action to relieve against mistake, etc., see Dobie, Federal Procedure Federal Practice Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) Perlman v. 322 West Seventy-Second Street Co., Inc Moores Federal Practice Schram v. Safety Investment Co Miller v. United States Subdivision (b) coram nobis audita querela Federal Relief from Civil Judgments Moores Federal Practice et seq Effect of Rule 60b on Other Methods of Relief From Judgment Wallace v. United States The reconstruction of Rule 60(b) has for one of its purposes a clarification of this situation. Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them. One procedure is by motion in the court and in the action in which the judgment was rendered. The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment. Various rules, such as the one dealing with a motion for new trial and for amendment of judgments, Rule 59, one for amended findings, Rule 52, and one for judgment notwithstanding the verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended, prescribe the various types of cases in which the practice by motion is permitted. In each case there is a limit upon the time within which resort to a motion is permitted, and this time limit may not be enlarged under Rule 6(b). If the right to make a motion is lost by the expiration of the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a judgment upon those principles which have heretofore been applied in such an action. Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations. The Committee has endeavored to ascertain all the remedies and types of relief heretofore available by coram nobis, coram vobis, audita querela Federal Relief from Civil Judgments To illustrate the operation of the amendment, it will be noted that under Rule 59(b) as it now stands, without amendment, a motion for new trial on the ground of newly discovered evidence is permitted within ten days after the entry of the judgment, or after that time upon leave of the court. It is proposed to amend Rule 59(b) by providing that under that rule a motion for new trial shall be served not later than ten days after the entry of the judgment, whatever the ground be for the motion, whether error by the court or newly discovered evidence. On the other hand, one of the purposes of the bill of review in equity was to afford relief on the ground of newly discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion similar to that heretofore obtained on bill of review, Rule 60(b) as amended permits an application for relief to be made by motion, on the ground of newly discovered evidence, within one year after judgment. Such a motion under Rule 60(b) does not affect the finality of the judgment, but a motion under Rule 59, made within 10 days, does affect finality and the running of the time for appeal. If these various amendments, including principally those to Rule 60(b), accomplish the purpose for which they are intended, the federal rules will deal with the practice in every sort of case in which relief from final judgments is asked, and prescribe the practice. With reference to the question whether, as the rules now exist, relief by coram nobis Wallace v. United States Fraser v. Doing Jones v. Watts Preveden v. Hahn Cavallo v. Agwilines, Inc McGinn v. United States City of Shattuck, Oklahoma ex rel. Versluis v. Oliver Federal Relief from Civil Judgments Moores Federal Practice et seq Effect of Rule 60b on Other Methods of Relief From Judgment, op. cit. supra. Cf. Norris v. Camp Reed v. South Atlantic Steamship Co. of Delaware Laughlin v. Berens The transposition of the words the court and the addition of the word and at the beginning of the first sentence are merely verbal changes. The addition of the qualifying word final emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires. The qualifying pronoun his has been eliminated on the basis that it is too restrictive, and that the subdivision should include the mistake or neglect of others which may be just as material and call just as much for supervisory jurisdiction as where the judgment is taken against the party through his Fraud, whether intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party are express grounds for relief by motion under amended subdivision (b). There is no sound reason for their exclusion. The incorporation of fraud and the like within the scope of the rule also removes confusion as to the proper procedure. It has been held that relief from a judgment obtained by extrinsic fraud could be secured by motion within a reasonable time, which might be after the time stated in the rule had run. Fiske v. Buder Bucy v. Nevada Construction Co Effect of Rule 60b on Other Methods of Relief From Judgment Federal Relief from Civil Judgments Moores Federal Practice et seq Hazel-Atlas Glass Co. v. Hartford Empire Co The time limit for relief by motion in the court and in the action in which the judgment was rendered has been enlarged from six months to one year. It should be noted that Rule 60(b) does not assume to define the substantive law as to the grounds for vacating judgments, but merely prescribes the practice in proceedings to obtain relief. It should also be noted that under  200(4) of the Soldiers and Sailors Civil Relief Act of 1940 ([former] 50 U.S.C. [App.]  501 et seq Notes of Advisory Committee on Rules1948 Amendment The amendment substitutes the present statutory reference. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 60 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence of former Rule 60(b) said that the procedure for obtaining any relief from a judgment was by motion as prescribed in the Civil Rules or by an independent action. That provision is deleted as unnecessary. Relief continues to be available only as provided in the Civil Rules or by independent action. Rule 61. Harmless Error  Unless justice requires otherwise, no error in admitting or excluding evidenceor any other error by the court or a partyis ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any partys substantial rights. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 A combination of U.S.C., Title 28,  391 [see 2111] (New trials; harmless error) and [former] 777 (Defects of form; amendments) with modifications. See McCandless v. United States Committee Notes on Rules2007 Amendment The language of Rule 61 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 62. Stay of Proceedings to Enforce a Judgment (a) Automatic Stay. Except as provided in Rule 62(c) and (d), execution on a judgment and proceedings to enforce it are stayed for 30 days after its entry, unless the court orders otherwise. (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 other security. (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 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 partys 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. (e) Stay Without Bond on an Appeal by the United States, Its Officers, or Its Agencies. The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the United States, its officers, or its agencies or on an appeal directed by a department of the federal government. (f) Stay in Favor of a Judgment Debtor Under State Law. If a judgment is a lien on the judgment debtors property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give. (g) Appellate Courts Power Not Limited. This rule does not limit the power of the appellate court or one of its judges or justices: (1) to stay proceedingsor suspend, modify, restore, or grant an injunctionwhile an appeal is pending; or (2) to issue an order to preserve the status quo or the effectiveness of the judgment to be entered. (h) Stay with Multiple Claims or Parties. A court may stay the enforcement of a final judgment entered under Rule 54(b) until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Apr. 17, 1961 July 19, 1961 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Note to Subdivision (b) Note to Subdivision (c) Cumberland Telephone and Telegraph Co. v. Louisiana Public Service Commission Federal Practice U.S.C., Title 7:  217 (Proceedings for suspension of orders of Secretary of Agriculture under Stockyards Act)by reference.  499k (Injunctions; application of injunction laws governing orders of Interstate Commerce Commission to orders of Secretary of Agriculture under Perishable Commodities Act)by reference. U.S.C., Title 15:  28 (Antitrust laws; suits against monopolies expedited) U.S.C., Title 28:  47 [now 2325] (Injunctions as to orders of Interstate Commerce Commission, etc.)  380 [now 2284] (Injunctions; alleged unconstitutionality of State statutes.)  380a [now 2284] (Same; constitutionality of federal statute) U.S.C., Title 49:  44 [former] (Suits in equity under interstate commerce laws; expedition of suits) Note to Subdivision (d) Note to Subdivision (e) Note to Subdivision (f) Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) et seq Bowsman v. Peterson Subdivision (b) Subdivision (h) Notes of Advisory Committee on Rules1948 Amendment Section 210 of the Judicial Code, as amended, U.S.C., Title 28,  47a, is repealed by revised Title 28 and its provisions that stays pending appeals to the Supreme Court in Interstate Commerce Commission cases may be granted only by that court or a justice thereof are not included in revised Title 28. Prior to this repeal the additional general reference in subdivision (g) to other statutes of the United States, was needed as a safety residual provision due to the specific reference to Section 210 of the Judicial Code. With the repeal of this latter section there is no need for the residual provision, which has no present applicability; and to the extent that any statute is enacted providing that stays pending appeals to the Supreme Court may be granted only by that court or a justice thereof it will govern and will not be inconsistent or repugnant to subdivision (g) as amended. Notes of Advisory Committee on Rules1961 Amendment These changes conform to the amendment of Rule 54(b). Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 62 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence of former Rule 62(a) referred to Rule 62(c). It is deleted as an unnecessary [sic]. Rule 62(c) governs of its own force. Committee Notes on Rules2009 Amendment The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 6. Committee Notes on Rules2018 Amendment Subdivisions (a), (b), (c), and (d) of former Rule 62 are reorganized and the provisions for staying a judgment are revised. The provisions for staying an injunction, receivership, or order for a patent accounting are reorganized by consolidating them in new subdivisions (c) and (d). There is no change in meaning. The language is revised to include all of the words used in 28 U.S.C.  1292(a)(1) to describe the right to appeal from interlocutory actions with respect to an injunction, but subdivisions (c) and (d) apply both to interlocutory injunction orders and to final judgments that grant, refuse, or otherwise deal with an injunction. New Rule 62(a) extends the period of the automatic stay to 30 days. Former Rule 62(a) set the period at 14 days, while former Rule 62(b) provided for a court-ordered stay pending disposition of motions under Rules 50, 52, 59, and 60. The time for making motions under Rules 50, 52, and 59, however, was later extended to 28 days, leaving an apparent gap between expiration of the automatic stay and any of those motions (or a Rule 60 motion) made more than 14 days after entry of judgment. The revised rule eliminates any need to rely on inherent power to issue a stay during this period. Setting the period at 30 days coincides with the time for filing most appeals in civil actions, providing a would-be appellant the full period of appeal time to arrange a stay by other means. A 30-day automatic stay also suffices in cases governed by a 60-day appeal period. Amended Rule 62(a) expressly recognizes the courts authority to dissolve the automatic stay or supersede it by a court-ordered stay. One reason for dissolving the automatic stay may be a risk that the judgment debtors assets will be dissipated. Similarly, it may be important to allow immediate enforcement of a judgment that does not involve a payment of money. The court may address the risks of immediate execution by ordering dissolution of the stay only on condition that security be posted by the judgment creditor. Rather than dissolve the stay, the court may choose to supersede it by ordering a stay that lasts longer or requires security. Subdivision 62(b) carries forward in modified form the supersedeas bond provisions of former Rule 62(d). A stay may be obtained under subdivision (b) at any time after judgment is entered. Thus a stay may be obtained before the automatic stay has expired, or after the automatic stay has been lifted by the court. The new rules text makes explicit the opportunity to post security in a form other than a bond. 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 securitya party may find it convenient to arrange a single bond or other security that persists through completion of post-judgment proceedings in the trial court and on through completion of all proceedings on appeal by issuance of the appellate mandate. This provision does not supersede the opportunity for a stay under 28 U.S.C.  2101(f) pending review by the Supreme Court on certiorari. Finally, subdivision (b) changes the provision in former subdivision (d) that an appellant may obtain a stay. Under new subdivision (b), a party may obtain a stay. For example, a party may wish to secure a stay pending disposition of post-judgment proceedings after expiration of the automatic stay, not yet knowing whether it will want to appeal. Rule 62.1. Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal (a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. (b) Notice to the Court of Appeals. The movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue. (c) Remand. The district court may decide the motion if the court of appeals remands for that purpose. (As added Mar. 26, 2009 Dec. 1, 2009  Committee Notes on Rules2009 This new rule adopts for any motion that the district court cannot grant because of a pending appeal the practice that most courts follow when a party makes a Rule 60(b) motion to vacate a judgment that is pending on appeal. After an appeal has been docketed and while it remains pending, the district court cannot grant a Rule 60(b) motion without a remand. But it can entertain the motion and deny it, defer consideration, or state that it would grant the motion if the the [sic] court of appeals remands for that purpose or state that the motion raises a substantial issue. Experienced lawyers often refer to the suggestion for remand as an indicative ruling. (Appellate Rule 4(a)(4) lists six motions that, if filed within the relevant time limit, suspend the effect of a notice of appeal filed before or after the motion is filed until the last such motion is disposed of. The district court has authority to grant the motion without resorting to the indicative ruling procedure.) This clear procedure is helpful whenever relief is sought from an order that the court cannot reconsider because the order is the subject of a pending appeal. Rule 62.1 does not attempt to define the circumstances in which an appeal limits or defeats the district courts authority to act in the face of a pending appeal. The rules that govern the relationship between trial courts and appellate courts may be complex, depending in part on the nature of the order and the source of appeal jurisdiction. Rule 62.1 applies only when those rules deprive the district court of authority to grant relief without appellate permission. If the district court concludes that it has authority to grant relief without appellate permission, it can act without falling back on the indicative ruling procedure. To ensure proper coordination of proceedings in the district court and in the appellate court, the movant must notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue. Remand is in the court of appeals discretion under Appellate Rule 12.1. Often it will be wise for the district court to determine whether it in fact would grant the motion if the court of appeals remands for that purpose. But a motion may present complex issues that require extensive litigation and that may either be mooted or be presented in a different context by decision of the issues raised on appeal. In such circumstances the district court may prefer to state that the motion raises a substantial issue, and to state the reasons why it prefers to decide only if the court of appeals agrees that it would be useful to decide the motion before decision of the pending appeal. The district court is not bound to grant the motion after stating that the motion raises a substantial issue; further proceedings on remand may show that the motion ought not be granted. Changes Made After Publication and Comment. Minor changes are made in the Committee Note to make it conform to the Committee Note for proposed Appellate Rule 12.1. Rule 63. Judges Inability to Proceed  If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a partys request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness. (As amended Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 This rule adapts and extends the provisions of U.S.C., Title 28, [former]  776 (Bill of exceptions; authentication; signing of by judge) to include all duties to be performed by the judge after verdict or judgment. The statute is therefore superseded. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment The revision substantially displaces the former rule. The former rule was limited to the disability of the judge, and made no provision for disqualification or possible other reasons for the withdrawal of the judge during proceedings. In making provision for other circumstances, the revision is not intended to encourage judges to discontinue participation in a trial for any but compelling reasons. Cf. United States v. Lane The former rule made no provision for the withdrawal of the judge during the trial, but was limited to disqualification after trial. Several courts concluded that the text of the former rule prohibited substitution of a new judge prior to the points described in the rule, thus requiring a new trial, whether or not a fair disposition was within reach of a substitute judge. E.g., Whalen v. Ford Motor Credit Co cert. denied Arrow-Hart, Inc. v. Philip Carey Co See generally The Case of the Dead Judge: Fed.R.Civ.P. 63: Whalen v. Ford Motor Credit Co The increasing length of federal trials has made it likely that the number of trials interrupted by the disability of the judge will increase. An efficient mechanism for completing these cases without unfairness is needed to prevent unnecessary expense and delay. To avoid the injustice that may result if the substitute judge proceeds despite unfamiliarity with the action, the new Rule provides, in language similar to Federal Rule of Criminal Procedure 25(a), that the successor judge must certify familiarity with the record and determine that the case may be completed before that judge without prejudice to the parties. This will necessarily require that there be available a transcript or a videotape of the proceedings prior to substitution. If there has been a long but incomplete jury trial, the prompt availability of the transcript or videotape is crucial to the effective use of this rule, for the jury cannot long be held while an extensive transcript is prepared without prejudice to one or all parties. The revised text authorizes the substitute judge to make a finding of fact at a bench trial based on evidence heard by a different judge. This may be appropriate in limited circumstances. First, if a witness has become unavailable, the testimony recorded at trial can be considered by the successor judge pursuant to F.R.Ev. 804, being equivalent to a recorded deposition available for use at trial pursuant to Rule 32. For this purpose, a witness who is no longer subject to a subpoena to compel testimony at trial is unavailable. Secondly, the successor judge may determine that particular testimony is not material or is not disputed, and so need not be reheard. The propriety of proceeding in this manner may be marginally affected by the availability of a videotape record; a judge who has reviewed a trial on videotape may be entitled to greater confidence in his or her ability to proceed. The court would, however, risk error to determine the credibility of a witness not seen or heard who is available to be recalled. Cf. Anderson v. City of Bessemer City NC Marshall v. Jerrico Inc United States v. Radatz Committee Notes on Rules2007 Amendment The language of Rule 63 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. TITLE VIII. PROVISIONAL AND FINAL REMEDIES Rule 64. Seizing a Person or Property (a) Remedies Under State LawIn General. At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies. (b) Specific Kinds of Remedies. The remedies available under this rule include the followinghowever designated and regardless of whether state procedure requires an independent action:  arrest;  attachment;  garnishment;  replevin;  sequestration; and  other corresponding or equivalent remedies. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 This rule adopts the existing Federal law, except that it specifies the applicable State law to be that of the time when the remedy is sought. Under U.S.C., Title 28, [former]  726 (Attachments as provided by State laws) the plaintiff was entitled to remedies by attachment or other process which were on June 1, 1872 Lis pendens lis pendens King v. Davis United States v. Calcasieu Timber Co For statutes of the United States on attachment, see e.g.: U.S.C., Title 28:  737 [now 2710] (Attachment in postal suits)  738 [now 2711] (Attachment; application for warrant)  739 [now 2712] (Attachment; issue of warrant)  740 [now 2713] (Attachment; trial of ownership of property)  741 [now 2714] (Attachment; investment of proceeds of attached property)  742 [now 2715] (Attachment; publication of attachment)  743 [now 2716] (Attachment; personal notice of attachment)  744 [now 2717] (Attachment; discharge; bond)  745 [former] (Attachment; accrued rights not affected)  746 (Attachments dissolved in conformity with State laws) For statutes of the United States on garnishment, see e.g.: U.S.C., Title 28:  748 [now 2405] (Garnishees in suits by United States against a corporation)  749 [now 2405] (Same; issue tendered on denial of indebtedness)  750 [now 2405] (Same; garnishee failing to appear) For statutes of the United States on arrest, see e.g.: U.S.C., Title 28:  376 [now 1651] (Writs of ne exeat)  755 [former] (Special bail in suits for duties and penalties)  756 [former] (Defendant giving bail in one district and committed in another)  757 [former] (Defendant giving bail in one district and committed in another; defendant held until judgment in first suit)  758 [former] (Bail and affidavits; taking by commissioners)  759 [former] (Calling of bail in Kentucky)  760 [former] (Clerks may take bail de bene esse)  843 [now 2007] (Imprisonment for debt)  844 [now 2007] (Imprisonment for debt; discharge according to State laws)  845 [now 2007] (Imprisonment for debt; jail limits) For statutes of the United States on replevin, see, e.g.: U.S.C., Title 28:  747 [now 2463] (Replevy of property taken under revenue laws) Notes of Advisory Committee on Rules1946 Supplementary Note Sections 203 and 204 of the Soldiers and Sailors Civil Relief Act of 1940 ([former] 50 U.S.C. [App.]  501 et seq Committee Notes on Rules2007 Amendment The language of Rule 64 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 64 stated that the Civil Rules govern an action in which any remedy available under Rule 64(a) is used. The Rules were said to govern from the time the action is commenced if filed in federal court, and from the time of removal if removed from state court. These provisions are deleted as redundant. Rule 1 establishes that the Civil Rules apply to all actions in a district court, and Rule 81(c)(1) adds reassurance that the Civil Rules apply to a removed action after it is removed. Rule 65. Injunctions and Restraining Orders (a) Preliminary Injunction. (1)  Notice. (2)  Consolidating the Hearing with the Trial on the Merits. (b) Temporary Restraining Order. (1)  Issuing Without Notice. (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movants attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. (2)  Contents; Expiration. (3)  Expediting the Preliminary-Injunction Hearing. (4)  Motion to Dissolve. (c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. (d) Contents and Scope of Every Injunction and Restraining Order. (1)  Contents. (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detailand not by referring to the complaint or other documentthe act or acts restrained or required. (2)  Persons Bound. (A) the parties; (B) the parties officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B). (e) Other Laws Not Modified. These rules do not modify the following: (1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee; (2) 28 U.S.C.  2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or (3) 28 U.S.C.  2284, which relates to actions that must be heard and decided by a three-judge district court. (f) Copyright Impoundment. This rule applies to copyright-impoundment proceedings. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 23, 2001 Dec. 1, 2001 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 Note to Subdivisions (a) and (b) Note to Subdivision (c) U.S.C., Title 15,  77t(b), 78u(e), and 79r(f) (Securities and Exchange Commission). It also excepts the United States or an officer or agency thereof from such security requirements in any action in which a restraining order or interlocutory judgment of injunction issues in its favor whether there is an express statutory exception from such security requirements or not. See U.S.C., [former] Title 6 (Official and Penal Bonds) for bonds by surety companies. Note to Subdivision (d) Note to Subdivision (e) Compare [former] Equity Rule 73 (Preliminary Injunctions and Temporary Restraining Orders) which is substantially equivalent to the statutes. For other statutes dealing with injunctions which are continued, see e.g.: U.S.C., Title 28:  46 [now 2324] (Suits to enjoin orders of Interstate Commerce Commission to be against United States)  47 [now 2325] (Injunctions as to orders of Interstate Commerce Commission; appeal to Supreme Court; time for taking)  378 [former] (Injunctions; when granted)  379 [now 2283] (Injunctions; stay in State courts)  380 [now 1253, 2101, 2281, 2284] (Injunctions; alleged unconstitutionality of State statutes; appeal to Supreme Court)  380a [now 1253, 2101, 2281, 2284] (Injunctions; constitutionality of Federal statute; application for hearing; appeal to Supreme Court) U.S.C., Title 7:  216 (Court proceedings to enforce orders; injunction)  217 (Proceedings for suspension of orders) U.S.C., Title 15:  4 (Jurisdiction of courts; duty of district attorney; procedure)  25 (Restraining violations; procedure)  26 (Injunctive relief for private parties; exceptions)  77t(b) (Injunctions and prosecution of offenses) Notes of Advisory Committee on Rules1946 Amendment It has been held that in actions on preliminary injunction bonds the district court has discretion to grant relief in the same proceeding or to require the institution of a new action on the bond. Russell v. Farley Collier on Bankruptcy Notes of Advisory Committee on Rules1948 Amendment Specific enumeration of statutes dealing with labor injunctions is undesirable due to the enactment of amendatory or new legislation from time to time. The more general and inclusive reference, any statute of the United States, does not change the intent of subdivision (e) of Rule 65, and the subdivision will have continuing applicability without the need of subsequent readjustment to labor legislation. The amendment relative to actions of interpleader or in the nature of interpleader substitutes the present statutory reference and will embrace any future amendment to statutory interpleader provided for in Title 28, U.S.C.,  2361. The Act of August 24, 1937 Notes of Advisory Committee on Rules1966 Amendment Subdivision (a)(2) The subdivision further provides that even when consolidation is not ordered, evidence received in connection with an application for a preliminary injunction for a preliminary injunction which would be admissible on the trial on the merits forms part of the trial record. This evidence need not be repeated on the trial. On the the other hand, repetition is not altogether prohibited. That would be impractical and unwise. For example, a witness testifying comprehensively on the trial who has previously testified upon the application for a preliminary injunction might sometimes be hamstrung in telling his story if he could not go over some part of his prior testimony to connect it with his present testimony. So also, some repetition of testimony may be called for where the trial is conducted by a judge who did not hear the application for the preliminary injunction. In general, however, repetition can be avoided with an increase of efficiency in the conduct of the case and without any distortion of the presentation of evidence by the parties. Since an application for a preliminary injunction may be made in an action in which, with respect to all or part of the merits, there is a right to trial by jury, it is appropriate to add the caution appearing in the last sentence of the subdivision. In such a case the jury will have to hear all the evidence bearing on its verdict, even if some part of the evidence has already been heard by the judge alone on the application for the preliminary injunction. The subdivision is believed to reflect the substance of the best current practice and introduces no novel conception. Subdivision (b) Pennsylvania Rd. Co. v. Transport Workers Union Arvida Corp. v. Sugarman Lummus Co. v. Commonwealth Oil Ref. Co., Inc Heretofore the first sentence of subdivision (b), in referring to a notice served on the adverse party on which a hearing could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivision is amended to make it plain that informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all. Before notice can be dispensed with, the applicants counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard. The amended subdivision continues to recognize that a temporary restraining order may be issued without any notice when the circumstances warrant. Subdivision (c) Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2001 Amendment New subdivision (f) is added in conjunction with abrogation of the antiquated Copyright Rules of Practice adopted for proceedings under the 1909 Copyright Act. Courts have naturally turned to Rule 65 in response to the apparent inconsistency of the former Copyright Rules with the discretionary impoundment procedure adopted in 1976, 17 U.S.C.  503(a). Rule 65 procedures also have assuaged well-founded doubts whether the Copyright Rules satisfy more contemporary requirements of due process. See, e.g., Religious Technology Center v. Netcom On-Line Communications Servs., Inc Paramount Pictures Corp. v. Doe WPOW, Inc. v. MRLJ Enterprises A common question has arisen from the experience that notice of a proposed impoundment may enable an infringer to defeat the courts capacity to grant effective relief. Impoundment may be ordered on an ex parte basis under subdivision (b) if the applicant makes a strong showing of the reasons why notice is likely to defeat effective relief. Such no-notice procedures are authorized in trademark infringement proceedings, see 15 U.S.C.  1116(d), and courts have provided clear illustrations of the kinds of showings that support ex parte relief. See Matter of Vuitton et Fils S.A Vuitton v. White This new subdivision (f) does not limit use of trademark procedures in cases that combine trademark and copyright claims. Some observers believe that trademark procedures should be adopted for all copyright cases, a proposal better considered by Congressional processes than by rulemaking processes. Changes Made After Publication and Comments Committee Notes on Rules2007 Amendment The language of Rule 65 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence of former Rule 65(c) referred to Rule 65.1. It is deleted as unnecessary. Rule 65.1 governs of its own force. Rule 65(d)(2) clarifies two ambiguities in former Rule 65(d). The former rule was adapted from former 28 U.S.C.  363, but omitted a comma that made clear the common doctrine that a party must have actual notice of an injunction in order to be bound by it.Amended Rule 65(d) restores the meaning of the earlier statute, and also makes clear the proposition that an injunction can be enforced against a person who acts in concert with a partys officer, agent, servant, employee, or attorney. Changes Made After Publication and Comment Committee Notes on Rules2009 Amendment The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 6. Rule 65.1. Proceedings Against a 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 with one or more security providers, each provider submits to the courts jurisdiction and irrevocably appoints the court clerk as its agent for receiving service of any papers that affect its liability on the security. The security providers 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 send a copy of each to every security provider whose address is known. (As added Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 12, 2006 Dec. 1, 2006 Apr. 30, 2007 Dec. 1, 2007 Apr. 26, 2018 Dec. 1, 2018  Notes of Advisory Committee on Rules1966 See Note to Rule 65. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2006 Amendment Rule 65.1 is amended to conform to the changed title of the Supplemental Rules. Committee Notes on Rules2007 Amendment The language of Rule 65.1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2018 Amendment Rule 65.1 is amended to reflect the amendments of Rule 62. Rule 62 allows a party to obtain a stay of a judgment by providing a bond or other security. Limiting Rule 65.1 enforcement procedures to sureties might exclude use of those procedures against a security provider that is not a surety. All security providers, including sureties, are brought into Rule 65.1 by these amendments. But the reference to bond is retained in Rule 62 because it has a long history. The word mail is changed to send to avoid restricting the method of serving security providers. Rule 66. Receivers  These rules govern an action in which the appointment of a receiver is sought or a receiver sues or is sued. But the practice in administering an estate by a receiver or a similar court-appointed officer must accord with the historical practice in federal courts or with a local rule. An action in which a receiver has been appointed may be dismissed only by court order. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1946 Amendment The title of Rule 66 has been expanded to make clear the subject of the rule, i.e The first sentence added to Rule 66 prevents a dismissal by any party, after a federal equity receiver has been appointed, except upon leave of court. A party should not be permitted to oust the court and its officer without the consent of that court. See Civil Rule 31(e), Eastern District of Washington. The second sentence added at the beginning of the rule deals with suits by or against a federal equity receiver. The first clause thereof eliminates the formal ceremony of an ancillary appointment before suit can be brought by a receiver, and is in accord with the more modern state practice, and with more expeditious and less expensive judicial administration. 2 Moores Federal Practice Sterrett v. Second Nat. Bank Kelley v. Queeney McCandless v. Furlaud Extraterritorial Powers of Receivers Extraterritorial Actions by Receivers The Extraterritorial Powers of Receivers A New Federal Civil ProcedureII, Pleadings and Parties Bicknell v. Lloyd-Smith Barton v. Barbour Clark on Receivers Capacity of a state court receiver to sue or be sued in federal court is governed by Rule 17(b). The last sentence added to Rule 66 assures the application of the rules in all matters except actual administration of the receivership estate itself. Since this implicitly carries with it the applicability of those rules relating to appellate procedure, the express reference thereto contained in Rule 66 has been stricken as superfluous. Under Rule 81(a)(1) the rules do not apply to bankruptcy proceedings except as they may be made applicable by order of the Supreme Court. Rule 66 is applicable to what is commonly known as a federal chancery or equity receiver, or similar type of court officer. It is not designed to regulate or affect receivers in bankruptcy, which are governed by the Bankruptcy Act and the General Orders. Since the Federal Rules are applicable in bankruptcy by virtue of General Orders in Bankruptcy 36 and 37 [following section 53 of Title 11 1 Collier on Bankruptcy Notes of Advisory Committee on Rules1948 Amendment Title 28, U.S.C.,  754 and 959(a), state the capacity of a federal receiver to sue or be sued in a federal court, and a repetitive statement of the statute in Rule 66 is confusing and undesirable. See also Note to Rule 17(b), supra. Committee Notes on Rules2007 Amendment The language of Rule 66 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 67. Deposit into Court (a) Depositing Property. If any part of the relief sought is a money judgment or the disposition of a sum of money or some other deliverable thing, a partyon notice to every other party and by leave of courtmay deposit with the court all or part of the money or thing, whether or not that party claims any of it. The depositing party must deliver to the clerk a copy of the order permitting deposit. (b) Investing and Withdrawing Funds. Money paid into court under this rule must be deposited and withdrawn in accordance with 28 U.S.C.  2041 and 2042 and any like statute. The money must be deposited in an interest-bearing account or invested in a court-approved, interest-bearing instrument. (As amended Dec. 29, 1948 Oct. 20, 1949 Apr. 28, 1983 Aug. 1, 1983 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 This rule provides for deposit in court generally, continuing similar special provisions contained in such statutes as U.S.C., Title 28,  41(26) [now 1335, 1397, 2361] (Original jurisdiction of bills of interpleader, and of bills in the nature of interpleader). See generally Howard v. United States English Rules Under the Judicature Act Notes of Advisory Committee on Rules1948 Amendment The first amendment substitutes the present statutory reference. Since the Act of June 26, 1934 December 21, 1944 58 Stat. 845 Notes of Advisory Committee on Rules1983 Amendment Rule 67 has been amended in three ways. The first change is the addition of the clause in the first sentence. Some courts have construed the present rule to permit deposit only when the party making it claims no interest in the fund or thing deposited. E.g., Blasin-Stern v. Beech-Nut Life Savers Corp Dinkins v. General Aniline & Film Corp The second change is the addition of a requirement that the order of deposit be served on the clerk of the court in which the sum or thing is to be deposited. This is simply to assure that the clerk knows what is being deposited and what his responsibilities are with respect to the deposit. The latter point is particularly important since the rule as amended contemplates that deposits will be placed in interest-bearing accounts; the clerk must know what treatment has been ordered for the particular deposit. The third change is to require that any money be deposited in an interest-bearing account or instrument approved by the court. Committee Notes on Rules2007 Amendment The language of Rule 67 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 68. Offer of Judgment (a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment. (b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. (c) Offer After Liability is Determined. When one partys liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable timebut at least 14 daysbefore the date set for a hearing to determine the extent of liability. (d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. (As amended Dec. 27, 1946 Mar. 19, 1948 Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 See 2 Minn. Stat. (Mason, 1927)  9323; 4 Mont. Rev. Codes Ann. (1935)  9770; N.Y.C.P.A. (1937)  177. For the recovery of costs against the United States, see Rule 54(d). Notes of Advisory Committee on Rules1946 Amendment The third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible. The two sentences substituted for the deleted last sentence of the rule assure a party the right to make a second offer where the situation permitsas, for example, where a prior offer was not accepted but the plaintiffs judgment is nullified and a new trial ordered, whereupon the defendant desires to make a second offer. It is implicit, however, that as long as the case continueswhether there be a first, second or third trialand the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered. In the case of successive offers not accepted, the offeror is saved the costs incurred after the making of the offer which was equal to or greater than the judgment ultimately obtained. These provisions should serve to encourage settlements and avoid protracted litigation. The phrase before the trial begins, in the first sentence of the rule, has been construed in Cover v. Chicago Eye Shield Co Notes of Advisory Committee on Rules1966 Amendment This logical extension of the concept of offer of judgment is suggested by the common admiralty practice of determining liability before the amount of liability is determined. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 68 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment Former Rule 68 allowed service of an offer of judgment more than 10 days before the trial begins, orif liability has been determinedat least 10 days before a hearing to determine the extent of liability. It may be difficult to know in advance when trial will begin or when a hearing will be held. The time is now measured from the date set for trial or hearing; resetting the date establishes a new time for serving the offer. The former 10-day periods are extended to 14 days to reflect the change in the Rule 6(a) method for computing periods less than 11 days. Rule 69. Execution (a) In General. (1)  Money Judgment; Applicable Procedure. (2)  Obtaining Discovery. (b) Against Certain Public Officers. When a judgment has been entered against a revenue officer in the circumstances stated in 28 U.S.C.  2006, or against an officer of Congress in the circumstances stated in 2 U.S.C.  118 1 1 (As amended Dec. 29, 1948 Oct. 20, 1949 Mar. 30, 1970 July 1, 1970 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Statutes of the United States on execution, when applicable, govern under this rule. Among these are: U.S.C., Title 12:  91 (Transfers by bank and other acts in contemplation of insolvency)  632 (Jurisdiction of United States district courts in cases arising out of foreign banking jurisdiction where Federal reserve bank a party) U.S.C., Title 19:  199 (Judgments for customs duties, how payable) U.S.C., Title 26:  1610(a) [former] (Surrender of property subject to distraint) U.S.C., Title 28:  122 [now 1656] (Creation of new district or transfer of territory; lien)  350 [now 2101] (Time for making application for appeal or certiorari; stay pending application for certiorari)  489 [now 547] (District Attorneys; reports to Department of Justice)  574 [now 1921] (Marshals, fees enumerated)  786 [former] (Judgments for duties; collected in coin)  811 [now 1961] (Interest on judgments)  838 [former] (Executions; run in all districts of State)  839 [now 2413] (Executions; run in every State and Territory)  840 [former] (Executions; stay on conditions), as modified by Rule 62(b).  841 [former] (Executions; stay of one term), as modified by Rule 62(f)  842 [now 2006] (Executions; against officers of revenue in cases of probable cause), as incorporated in Subdivision (b  843 [now 2007] (Imprisonment for debt)  844 [now 2007] (Imprisonment for debt; discharge according to State laws)  845 [now 2007] (Imprisonment for debt; jail limits)  846 [now 2005] (Fieri Facias; appraisal of goods; appraisers)  847 [now 2001] (Sales; real property under order or decree)  848 [now 2004] (Sales; personal property under order or decree)  849 [now 2002] (Sales; necessity of notice)  850 [now 2003] (Sales; death of marshal after levy or after sale)  869 [former] (Bond in former error and on appeal) as incorporated in Rule 73(c)  874 [former] (Supersedeas), as modified by Rules 62(d) and 73(d) U.S.C., Title 31:  195 [now 3715] (Purchase on execution) U.S.C., Title 33:  918 (Collection of defaulted payments) U.S.C., Title 49:  74(g) [former] (Causes of action arising out of Federal control of railroads; execution and other process) Special statutes of the United States on exemption from execution are also continued. Among these are: U.S.C., Title 2:  118 (Actions against officers of Congress for official acts) U.S.C., Title 5:  729 [see 8346, 8470] (Federal employees retirement annuities not subject to assignment, execution, levy, or other legal process) U.S.C., Title 10:  610 [now 3690, 8690] (Exemption of enlisted men from arrest on civil process) U.S.C., Title 22:  21(h) [see 4060] (Foreign service retirement and disability system; establishment; rules and regulations; annuities; nonassignable; exemption from legal process) U.S.C., Title 33:  916 (Assignment and exemption from claims of creditors) Longshoremens and Harborworkers Compensation Act) U.S.C., Title 38:  54 [see 5301] (Attachment, levy or seizure of moneys due pensioners prohibited)  393 [former] (Army and Navy Medal of Honor Roll; pensions additional to other pensions; liability to attachment, etc.) Compare Title 34,  365(c) (Medal of Honor Roll; special pension to persons enrolled)  618 [see 5301] (Benefits exempt from seizure under process and taxation; no deductions for indebtedness to United States) U.S.C., Title 43:  175 (Exemption from execution of homestead land) U.S.C., Title 48:  1371 o Notes of Advisory Committee on Rules1946 Supplementary Note With respect to the provisions of the Soldiers and Sailors Civil Relief Act of 1940 ([former] 50 U.S.C. [App.]  501 et seq Notes of Advisory Committee on Rules1948 Amendment The amendment substitutes the present statutory reference. Notes of Advisory Committee on Rules1970 Amendment The amendment assures that, in aid of execution on a judgment, all discovery procedures provided in the rules are available and not just discovery via the taking of a deposition. Under the present language, one court has held that Rule 34 discovery is unavailable to the judgment creditor. M. Lowenstein & Sons, Inc. v. American Underwear Mfg. Co United States v. McWhirter Moores Federal Practice Federal Practice and Procedure McWhirter Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 69 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Amended Rule 69(b) incorporates directly the provisions of 2 U.S.C.  118 and 28 U.S.C.  2006, deleting the incomplete statement in former Rule 69(b) of the circumstances in which execution does not issue against an officer.  References in Text 2 U.S.C.  118, referred to in subd. (b), was editorially reclassified as 2 U.S.C. 5503 Rule 70. Enforcing a Judgment for a Specific Act (a) Partys Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be doneat the disobedient partys expenseby another person appointed by the court. When done, the act has the same effect as if done by the party. (b) Vesting Title. If the real or personal property is within the district, the courtinstead of ordering a conveyancemay enter a judgment divesting any partys title and vesting it in others. That judgment has the effect of a legally executed conveyance. (c) Obtaining a Writ of Attachment or Sequestration. On application by a party entitled to performance of an act, the clerk must issue a writ of attachment or sequestration against the disobedient partys property to compel obedience. (d) Obtaining a Writ of Execution or Assistance. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance. (e) Holding in Contempt. The court may also hold the disobedient party in contempt. (As amended Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Compare [former] Equity Rules 7 (Process, Mesne and Final), 8 (Enforcement of Final Decrees), and 9 (Writ of Assistance). To avoid possible confusion, both old and new denominations for attachment (sequestration) and execution (assistance) are used in this rule. Compare with the provision in this rule that the judgment may itself vest title, 6 Tenn.Ann.Code (Williams, 1934),  10594; 2 Conn.Gen.Stat. (1930),  5455; N.M.Stat.Ann. (Courtright, 1929),  117117; 2 Ohio Gen.Code Ann. (Page, 1926),  11590; and England, Supreme Court of Judicature Act (1925),  47. Committee Notes on Rules2007 Amendment The language of Rule 70 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 71. Enforcing Relief For or Against a Nonparty  When an order grants relief for a nonparty or may be enforced against a nonparty, the procedure for enforcing the order is the same as for a party. (As amended Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Compare [former] Equity Rule 11 (Process in Behalf of and Against Persons Not Parties). Compare also Terrell v. Allison Farmers Loan and Trust Co. v. Chicago and A. Ry. Co Robert Findlay Mfg. Co. v. Hygrade Lighting Fixture Corp Thompson v. Smith Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 71 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. TITLE IX. SPECIAL PROCEEDINGS Rule 71.1. Condemning Real or Personal Property (a) Applicability of Other Rules. These rules govern proceedings to condemn real and personal property by eminent domain, except as this rule provides otherwise. (b) Joinder of Properties. The plaintiff may join separate pieces of property in a single action, no matter whether they are owned by the same persons or sought for the same use. (c) Complaint. (1)  Caption. (2)  Contents. (A) the authority for the taking; (B) the uses for which the property is to be taken; (C) a description sufficient to identify the property; (D) the interests to be acquired; and (E) for each piece of property, a designation of each defendant who has been joined as an owner or owner of an interest in it. (3)  Parties. (4)  Procedure. (5)  Filing; Additional Copies. (d) Process. (1)  Delivering Notice to the Clerk. (2)  Contents of the Notice. (A)  Main Contents. (i) that the action is to condemn property; (ii) the interest to be taken; (iii) the authority for the taking; (iv) the uses for which the property is to be taken; (v) that the defendant may serve an answer on the plaintiffs attorney within 21 days after being served with the notice; (vi) that the failure to so serve an answer constitutes consent to the taking and to the courts authority to proceed with the action and fix the compensation; and (vii) that a defendant who does not serve an answer may file a notice of appearance. (B)  Conclusion. (3)  Serving the Notice. (A)  Personal Service. (B)  Service by Publication. (i) A defendant may be served by publication only when the plaintiffs attorney files a certificate stating that the attorney believes the defendant cannot be personally served, because after diligent inquiry within the state where the complaint is filed, the defendants place of residence is still unknown or, if known, that it is beyond the territorial limits of personal service. Service is then made by publishing the noticeonce a week for at least 3 successive weeksin a newspaper published in the county where the property is located or, if there is no such newspaper, in a newspaper with general circulation where the property is located. Before the last publication, a copy of the notice must also be mailed to every defendant who cannot be personally served but whose place of residence is then known. Unknown owners may be served by publication in the same manner by a notice addressed to Unknown Owners. (ii) Service by publication is complete on the date of the last publication. The plaintiffs attorney must prove publication and mailing by a certificate, attach a printed copy of the published notice, and mark on the copy the newspapers name and the dates of publication. (4)  Effect of Delivery and Service. (5)  Amending the Notice; Proof of Service and Amending the Proof. l (e) Appearance or Answer. (1)  Notice of Appearance. (2)  Answer. (A) identify the property in which the defendant claims an interest; (B) state the nature and extent of the interest; and (C) state all the defendants objections and defenses to the taking. (3)  Waiver of Other Objections and Defenses; Evidence on Compensation. (f) Amending Pleadings. Without leave of court, the plaintiff mayas often as it wantsamend the complaint at any time before the trial on compensation. But no amendment may be made if it would result in a dismissal inconsistent with Rule 71.1(i)(1) or (2). The plaintiff need not serve a copy of an amendment, but must serve notice of the filing, as provided in Rule 5(b), on every affected party who has appeared and, as provided in Rule 71.1(d), on every affected party who has not appeared. In addition, the plaintiff must give the clerk at least one copy of each amendment for the defendants use, and additional copies at the request of the clerk or a defendant. A defendant may appear or answer in the time and manner and with the same effect as provided in Rule 71.1(e). (g) Substituting Parties. If a defendant dies, becomes incompetent, or transfers an interest after being joined, the court may, on motion and notice of hearing, order that the proper party be substituted. Service of the motion and notice on a nonparty must be made as provided in Rule 71.1(d)(3). (h) Trial of the Issues. (1)  Issues Other Than Compensation; Compensation. (A) by any tribunal specially constituted by a federal statute to determine compensation; or (B) if there is no such tribunal, by a jury when a party demands one within the time to answer or within any additional time the court sets, unless the court appoints a commission. (2)  Appointing a Commission; Commissions Powers and Report. (A)  Reasons for Appointing. (B)  Alternate Commissioners. (C)  Examining the Prospective Commissioners. (D)  Commissions Powers and Report. (i) Dismissal of the Action or a Defendant. (1)  Dismissing the Action. (A)  By the Plaintiff. (B)  By Stipulation. (C)  By Court Order. (2)  Dismissing a Defendant. (3)  Effect. (j) Deposit and Its Distribution. (1)  Deposit. (2)  Distribution; Adjusting Distribution. (k) Condemnation Under a States Power of Eminent Domain. This rule governs an action involving eminent domain under state law. But if state law provides for trying an issue by juryor for trying the issue of compensation by jury or commission or boththat law governs. (l) Costs. Costs are not subject to Rule 54(d). (As added Apr. 30, 1951 Aug. 1, 1951 Jan. 21, 1963 July 1, 1963 Apr. 29, 1985 Aug. 1, 1985 Mar. 2, 1987 Aug. 1, 1987 Apr. 25, 1988 Aug. 1, 1988 Pub. L. 100690, title VII,  7050 Nov. 18, 1988 102 Stat. 4401 Apr. 22, 1993 Dec. 1, 1993 Mar. 27, 2003 Dec. 1, 2003 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1951 Supplementary report The Court will remember that at its conference on December 2, 1948 The other instance is that of the Tennessee Valley Authority, where the act of Congress (U.S.C., Title 16,  831x) provides that compensation is fixed by three disinterested commissioners appointed by the court, whose award goes before the District Court for confirmation or modification. The Advisory Committee made a thorough inquiry into the practical operation of the TVA commission system. We obtained from counsel for the TVA the results of their experience, which afforded convincing proof that the commission system is preferable under the conditions affecting TVA and that the jury system would not work satisfactorily. We then, under date of February 6, 1947 (h) Trial. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix. Trial of all issues shall otherwise be by the court. The effect of this was to preserve the existing systems in the District of Columbia and in TVA cases, but to provide for a jury to fix compensation in all other cases. Before the Courts conference of December 2, 1948 February 13, 1947 The reasons which convinced the Advisory Committee that the use of commissioners instead of juries is desirable in TVA cases were these: 1. The TVA condemns large areas of land of similar kind, involving many owners. Uniformity in awards is essential. The commission system tends to prevent discrimination and provide for uniformity in compensation. The jury system tends to lack of uniformity. Once a reasonable and uniform standard of values for the area has been settled by a commission, litigation ends and settlements result. 2. Where large areas are involved many small landowners reside at great distances from the place where a court sits. It is a great hardship on humble people to have to travel long distances to attend a jury trial. A commission may travel around and receive the evidence of the owner near his home. 3. It is impracticable to take juries long distances to view the premises. 4. If the cases are tried by juries the burden on the time of the courts is excessive. These considerations are the very ones Judge Paul stressed in his letter. He pointed out that they applied not only to the TVA but to other large governmental projects, such as flood control, hydroelectric power, reclamation, national forests, and others. So when the representatives of the Advisory Committee appeared at the Courts conference December 2, 1948 Aware of the apparent inconsistency between the acceptance of the TVA system and the provision for a jury in all other cases, the members of the Committee attending the conference of December 2, 1948 The proposal we now make for subdivision (h) is as follows: (h) Trial. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court. In the 1948 draft the Committee had been almost evenly divided as between jury or commission and that made it easy for us to agree on the present draft. It would be difficult to state in a rule the various conditions to control the District Court in its choice and we have merely stated generally the matters which should be considered by the District Court. The rule as now drafted seems to meet Judge Pauls objection. In large projects like the TVA the court may decide to use a commission. In a great number of cases involving only sites for buildings or other small areas, where use of a jury is appropriate, a jury may be chosen. The District Courts discretion may also be influenced by local preference or habit, and the preference of the Department of Justice and the reasons for its preference will doubtless be given weight. The Committee is convinced that there are some types of cases in which use of a commission is preferable and others in which a jury may be appropriately used, and that it would be a mistake to provide that the same kind of tribunal should be used in all cases. We think the available evidence clearly leads to that conclusion. When this suggestion was made at the conference of December 2, 1948 We earnestly recommend the rule as now drafted for promulgation by the Court, in the public interest. The Advisory Committee have given more time to this rule, including time required for conferences with the Department of Justice to hear statements of its representatives, than has been required by any other rule. The rule may not be perfect but if faults develop in practice they may be promptly cured. Certainly the present conformity system is atrocious. Under state practices, just compensation is normally determined by one of three methods: by commissioners; by commissioners with a right of appeal to and trial de novo before a jury; and by a jury, without a commission. A trial to the court or to the court including a master are, however, other methods that are occasionally used. Approximately 5 states use only commissioners; 23 states use commissioners with a trial de novo before a jury; and 18 states use only the jury. This classification is advisedly stated in approximate terms, since the same state may utilize diverse methods, depending upon different types of condemnations or upon the locality of the property, and since the methods used in a few states do not permit of a categorical classification. To reject the proposed rule and leave the situation as it is would not satisfy the views of the Department of Justice. The Department and the Advisory Committee agree that the use of a commission, with appeal to a jury, is a wasteful system. The Department of Justice has a voluminous Manual on Federal Eminent Domain, the 1940 edition of which has 948 pages with an appendix of 73 more pages. The title page informs us the preparation of the manual was begun during the incumbency of Attorney General Cummings, was continued under Attorney General Murphy, and completed during the incumbency of Attorney General Jackson. The preface contains the following statement: It should also be mentioned that the research incorporated in the manual would be of invaluable assistance in the drafting of a new uniform code, or rules of court, for federal condemnation proceedings, which are now greatly confused, not only by the existence of over seventy federal statutes governing condemnations for different purposesstatutes which sometimes conflict with one anotherbut also by the countless problems occasioned by the requirements of conformity to state law. Progress of the work has already demonstrated that the need for such reform exists. It is not surprising that more than once Attorneys General have asked the Advisory Committee to prepare a federal rule and rescue the government from this morass. The Department of Justice has twice tried and failed to persuade the Congress to provide that juries shall be used in all condemnation cases. The debates in Congress show that part of the opposition to the Department of Justices bills came from representatives opposed to jury trials in all cases, and in part from a preference for the conformity system. Our present proposal opens the door for district judges to yield to local preferences on the subject. It does much for the Departments points of view. It is a great improvement over the present so-called conformity system. It does away with the wasteful double system prevailing in 23 states where awards by commissions are followed by jury trials. Aside from the question as to the choice of a tribunal to award compensation, the proposed rule would afford a simple and improved procedure. We turn now to an itemized explanation of the other changes we have made in the 1948 draft. Some of these result from recent amendments to the Judicial Code. Others result from a reconsideration by the Advisory Committee of provisions which we thought could be improved. 1. In the amended Judicial Code, the district courts are designated as United States District Courts instead of District Courts of the United States, and a corresponding change has been made in the rule. 2. After the 1948 draft was referred back to the committee, the provision in subdivision (c)(2), relating to naming defendants, * * * which provided that the plaintiff shall add as defendants all persons having or claiming an interest in that property whose names can be ascertained by a search of the records to the extent commonly made by competent searchers of title in the vicinity in light of the type and value of the property involved, the phrase in quotation marks was changed to read in the light of the character and value of the property involved and the interests to be acquired. The Department of Justice made a counter proposal * * * that there be substituted the words reasonably diligent search of the records, considering the type. When the American Bar Association thereafter considered the draft, it approved the Advisory Committees draft of this subdivision, but said that it had no objection to the Departments suggestion. Thereafter, in an effort to eliminate controversy, the Advisory Committee accepted the Departments suggestion as to (c)(2), using the word character instead of the word type. The Department of Justice also suggested that in subdivision (d)(3)(2) relating to service by publication, the search for a defendants residence as a preliminary to publication be limited to the state in which the complaint is filed. Here again the American Bar Associations report expressed the view that the Departments suggestion was unobjectionable and the Advisory Committee thereupon adopted it. 3. Subdivision (k) of the 1948 draft is as follows: (k) Condemnation Under a States Power of Eminent Domain. If the action involves the exercise of the power of eminent domain under the law of a state, the practice herein prescribed may be altered to the extent necessary to observe and enforce any condition affecting the substantial rights of a litigant attached by the state law to the exercise of the states power of eminent domain. Occasionally condemnation cases under a states power of eminent domain reach a United States District Court because of diversity of citizenship. Such cases are rare, but provision should be made for them. The 1948 draft of (k) required a district court to decide whether a provision of state law specifying the tribunal to award compensation is or is not a condition attached to the exercise of the states power. On reconsideration we concluded that it would be wise to redraft (k) so as to avoid that troublesome question. As to conditions in state laws which affect the substantial rights of a litigant, the district courts would be bound to give them effect without any rule on the subject. Accordingly we present two alternative revisions. One suggestion supported by a majority of the Advisory Committee is as follows: (k) Condemnation Under a States Power of Eminent Domain. The practice herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed. The other is as follows: (k) Condemnation Under a States Power of Eminent Domain. The practice herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law gives a right to a trial by jury such a trial shall in any case be allowed to the party demanding it within the time permitted by these rules, and in that event no hearing before a commission shall be had. The first proposal accepts the state law as to the tribunals to fix compensation, and in that respect leaves the parties in precisely the same situation as if the case were pending in a state court, including the use of a commission with appeal to a jury, if the state law so provides. It has the effect of avoiding any question as to whether the decisions in Erie R. Co. v. Tompkins The second proposal gives the parties a right to a jury trial if that is provided for by state law, but prevents the use of both commission and jury. Those members of the Committee who favor the second proposal do so because of the obvious objections to the double trial, with a commission and appeal to a jury. As the decisions in Erie R. Co. v. Tompkins 4. The provision * * * of the 1948 draft * * * prescribing the effective date of the rule was drafted before the recent amendment of the Judicial Code on that subject. On May 10, 1950 section 2072 of Title 28 Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof but not later than the first day of May, and until the expiration of 90 days after they have been thus reported. To conform to the statute now in force, we suggest a provision as follows: Effective Date. This Rule 71A and the amendment to Rule 81(a) will take effect on August 1, 1951 If the rule is not reported to Congress by May 1, 1951 5. We call attention to the fact that the proposed rule does not contain a provision for the procedure to be followed in order to exercise the right of the United States to take immediate possession or title, when the condemnation proceeding is begun. There are several statutes conferring such a right which are cited in the original notes to the May 1948 draft * * *. The existence of this right is taken into account in the rule. In paragraph (c)(2), * * * it is stated: Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known. That is to enable the United States to exercise the right to immediate title or possession without the delay involved in ascertaining the names of all interested parties. The right is also taken into account in the provision relating to dismissal (paragraph (i) subdivisions (1), (2), and (3), * * *); also in paragraph (j) relating to deposits and their distribution. The Advisory Committee considered whether the procedure for exercising the right should be specified in the rule and decided against it, as the procedure now being followed seems to be giving no trouble, and to draft a rule to fit all the statutes on the subject might create confusion. The American Bar Association has taken an active interest in a rule for condemnation cases. In 1944 its House of Delegates adopted a resolution which among other things resolved: That before adoption by the Supreme Court of the United States of any redraft of the proposed rule, time and opportunity should be afforded to the bar to consider and make recommendations concerning any such redraft. Accordingly, in 1950 the revised draft was submitted to the American Bar Association and its section of real property, probate and trust law appointed a committee to consider it. That committee was supplied with copies of the written statement from the Department of Justice giving the reasons relied on by the Department for preferring a rule to use juries in all cases. The Advisory Committees report was approved at a meeting of the section of real property law, and by the House of Delegates at the annual meeting of September 1950. The American Bar Association report gave particular attention to the question whether juries or commissions should be used to fix compensation, approved the Advisory Committees solution appearing in their latest draft designed to allow use of commissions in projects comparable to the TVA, and rejected the proposal for use of juries in all cases. In November 1950 a committee of the Federal Bar Association, the chairman of which was a Special Assistant to the Attorney General, made a report which reflected the attitude of the Department of Justice on the condemnation rule. Aside from subdivision (h) about the tribunal to award compensation the final draft of the condemnation rule here presented has the approval of the American Bar Association and, we understand, the Department of Justice, and we do not know of any opposition to it. Subdivision (h) has the unanimous approval of the Advisory Committee and has been approved by the American Bar Association. The use of commissions in TVA cases, and, by fair inference, in cases comparable to the TVA, is supported by 17 out of 20 judges who up to 1947 had sat in TVA cases. The legal staff of the TVA has vigorously objected to the substitution of juries for commissions in TVA cases. We regret to report that the Department of Justice still asks that subdivision (h) be altered to provide for jury trials in all cases where Congress has not specified the tribunal. We understand that the Department approves the proposal that the system prevailing in 23 states for the double trial, by commission with appeal to and trial de novo before a jury, should be abolished, and also asks that on demand a jury should be substituted for a commission, in those states where use of a commission alone is now required. The Advisory Committee has no evidence that commissions do not operate satisfactorily in the case of projects comparable to the TVA. Original report General Statement. 1. Background. When the Advisory Committee was formulating its recommendations to the Court concerning rules of procedure, which subsequently became the Federal Rules of 1938, the Committee concluded at an early stage not to fix the procedure in condemnation cases. This is a matter principally involving the exercise of the federal power of eminent domain, as very few condemnation cases involving the states power reach the United States District Courts. The Committees reasons at that time were that inasmuch as condemnation proceedings by the United States are governed by statutes of the United States, prescribing different procedure for various agencies and departments of the government, or, in the absence of such statutes, by local state practice under the Conformity Act ([former] 40 U.S.C. sec. 258), it would be extremely difficult to draft a uniform rule satisfactory to the various agencies and departments of the government and to private parties; and that there was no general demand for a uniform rule. The Committee continued in that belief until shortly before the preparation of the April 1937 Draft of the Rules, when the officials of the Department of Justice having to do with condemnation cases urgently requested the Committee to propose rules on this subject. The Committee undertook the task and drafted a Condemnation Rule which appeared for the first time as Rule 74 of the April 1937 Draft. After the publication and distribution of this initial draft many objections were urged against it by counsel for various governmental agencies, whose procedure in condemnation cases was prescribed by federal statutes. Some of these agencies wanted to be excepted in whole or in part from the operation of the uniform rule proposed in April 1937. And the Department of Justice changed its position and stated that it preferred to have government condemnations conducted by local attorneys familiar with the state practice, which was applied under the Conformity Act where the Acts of Congress do not prescribe the practice; that it preferred to work under the Conformity Act without a uniform rule of procedure. The profession generally showed little interest in the proposed uniform rule. For these reasons the Advisory Committee in its Final Report to the Court in November 1937 proposed that all of Rule 74 be stricken and that the Federal Rules be made applicable only to appeals in condemnation cases. See note to Rule 74 of the Final Report. Some six or seven years later when the Advisory Committee was considering the subject of amendments to the Federal Rules both government officials and the profession generally urged the adoption of some uniform procedure. This demand grew out of the volume of condemnation proceedings instituted during the war, and the general feeling of dissatisfaction with the diverse condemnation procedures that were applicable in the federal courts. A strongly held belief was that both the sovereigns power to condemn and the property owners right to compensation could be promoted by a simplified rule. As a consequence the Committee proposed a Rule 71A on the subject of condemnation in its Preliminary Draft of May 1944. In the Second Preliminary Draft of May 1945 this earlier proposed Rule 71A was, however, omitted. The Committee did not then feel that it had sufficient time to prepare a revised draft satisfactorily to it which would meet legitimate objections made to the draft of May 1944. To avoid unduly delaying the proposed amendments to existing rules the Committee concluded to proceed in the regular way with the preparation of the amendments to these rules and deal with the question of a condemnation rule as an independent matter. As a consequence it made no recommendations to the Court on condemnation in its Final Report of Proposed Amendments of June 1946; and the amendments which the Court adopted in December 1946 did not deal with condemnation. After concluding its task relative to amendments, the Committee returned to a consideration of eminent domain, its proposed Rule 71A of May 1944, the suggestions and criticisms that had been presented in the interim, and in June 1947 prepared and distributed to the profession another draft of a proposed condemnation rule. This draft contained several alternative provisions, specifically called attention to and asked for opinion relative to these matters, and in particular as to the constitution of the tribunal to award compensation. The present draft was based on the June 1947 formulation, in light of the advice of the profession on both matters of substance and form. 2. Statutory Provisions. The need for a uniform condemnation rule in the federal courts arises from the fact that by various statutes Congress has prescribed diverse procedures for certain condemnation proceedings, and, in the absence of such statutes, has prescribed conformity to local state practice under [former] 40 U.S.C.  258. This general conformity adds to the diversity of procedure since in the United States there are multifarious methods of procedure in existence. Thus in 1931 it was said that there were 269 different methods of judicial procedure in different classes of condemnation cases and 56 methods of nonjudicial or administrative procedure. First Report of Judicial Council of Michigan, 1931,  46, pp. 5556. These numbers have not decreased. Consequently, the general requirement of conformity to state practice and procedure, particularly where the condemnor is the United States, leads to expense, delay and uncertainty. In advocacy of a uniform federal rule, see Armstrong, Proposed Amendments to Federal Rules for Civil Procedure 1944, 4 F.R.D. 124, 134; id., Report of the Advisory Committee on Federal Rules of Civil Procedure Recommending Amendments, 1946, 5 F.R.D. 339, 357. There are a great variety of Acts of Congress authorizing the exercise of the power of eminent domain by the United States and its officers and agencies. These statutes for the most part do not specify the exact procedure to be followed, but where procedure is prescribed, it is by no means uniform. The following are instances of Acts which merely authorize the exercise of the power without specific declaration as to the procedure: U.S.C., Title 16:  404c11 (Mammoth Cave National Park; acquisition of lands, interests in lands or other property for park by the Secretary of the Interior).  426d (Stones River National Park; acquisition of land for parks by the Secretary of the Army).  450aa (George Washington Carver National Monument; acquisition of land by the Secretary of the Interior).  517 (National forest reservation; title to lands to be acquired by the Secretary of Agriculture). U.S.C., Title 42:  1805(b)(5), 1813(b) (Atomic Energy Act). The following are instances of Acts which authorized condemnation and declare that the procedure is to conform with that of similar actions in state courts: U.S.C., Title 16:  423k (Richmond National Battlefield Park; acquisition of lands by the Secretary of the Interior).  714 (Exercise by water power licensee of power of eminent domain). U.S.C., Title 24:  78 (Condemnation of land for the former National Home for Disabled Volunteer Soldiers). U.S.C., Title 33:  591 (Condemnation of lands and materials for river and harbor improvement by the Secretary of the Army). U.S.C., Title 40:  257 [now 3113] (Condemnation of realty for sites for public building and for other public uses by the Secretary of the Treasury authorized).  258 [former] (Same procedure). U.S.C., Title 50:  171 (Acquisition of land by the Secretary of the Army for national defense).  172 (Acquisition of property by the Secretary of the Army, etc., for production of lumber).  632 App. (Second War Powers Act, 1942; acquisition of real property for war purposes by the Secretary of the Army, the Secretary of the Navy and others). The following are Acts in which a more or less complete code of procedure is set forth in connection with the taking: U.S.C., Title 16:  831x (Condemnation by Tennessee Valley Authority). U.S.C., Title 40:  361386 [former] (Acquisition of lands in District of Columbia for use of United States; condemnation). 3. Adjustment of Rule to Statutory Provisions. While it was apparent that the principle of uniformity should be the basis for a rule to replace the multiple diverse procedures set out above, there remained a serious question as to whether an exception could properly be made relative to the method of determining compensation. Where Congress had provided for conformity to state law the following were the general methods in use: an initial determination by commissioners, with appeal to a judge; an initial award, likewise made by commissioners, but with the appeal to a jury; and determination by a jury without a previous award by commissioners. In two situations Congress had specified the tribunal to determine the issue of compensation: condemnation by the Tennessee Valley Authority; and condemnation in the District of Columbia. Under the TVA procedure the initial determination of value is by three disinterested commissioners, appointed by the court, from a locality other than the one in which the land lies. Either party may except to the award of the commission; in that case the exceptions are to be heard by three district judges (unless the parties stipulate for a lesser number), with a right of appeal to the circuit court of appeals. The TVA is a regional agency. It is faced with the necessity of acquiring a very substantial acreage within a relatively small area, and charged with the task of carrying on within the Tennessee Valley and in cooperation with the local people a permanent program involving navigation and flood control, electric power, soil conservation, and general regional development. The success of this program is partially dependent upon the good will and cooperation of the people of the Tennessee Valley, and this in turn partially depends upon the land acquisition program. Disproportionate awards among landowners would create dissatisfaction and ill will. To secure uniformity in treatment Congress provided the rather unique procedure of the three-judge court to review de novo the initial award of the commissioners. This procedure has worked to the satisfaction of the property owners and the TVA. A full statement of the TVA position and experience is set forth in Preliminary Draft of Proposed Rule to Govern Condemnation Cases (June, 1947) 1519. A large majority of the district judges with experience under this procedure approve it, subject to some objection to the requirement for a three-judge district court to review commissioners awards. A statutory three-judge requirement is, however, jurisdictional and must be strictly followed. Stratton v. St. Louis, Southwestern Ry. Co Ayrshire Collieries Corp. v. United States Aside from the foregoing limited exceptions dealing with the TVA and the District of Columbia, the question was whether a uniform method for determining compensation should be a commission with appeal to a district judge, or a commission with appeal to a jury, or a jury without a commission. Experience with the commission on a nationwide basis, and in particular with the utilization of a commission followed by an appeal to a jury, has been that the commission is time consuming and expensive. Furthermore, it is largely a futile procedure where it is preparatory to jury trial. Since in the bulk of states a land owner is entitled eventually to a jury trial, since the jury is a traditional tribunal for the determination of questions of value, and since experience with juries has proved satisfactory to both government and land owner, the right to jury trial is adopted as the general rule. Condemnation involving the TVA and the District of Columbia are the two exceptions. See Note to Subdivision (h), infra. Note to Subdivision (a) The promulgation of a rule for condemnation procedure is within the rule-making power. The Enabling Act [Act of June 19, 1934 48 Stat. 1064 Kohl v. United States Madisonville Traction Co. v. Saint Bernard Mining Co United States v. 243.22 Acres of Land in Village of Farmingdale, Town of Babylon, Suffolk County, N.Y Rule 71A affords a uniform procedure for all cases of condemnation invoking the national power of eminent domain, and, to the extent stated in subdivision (k), for cases invoking a states power of eminent domain; and supplants all statutes prescribing a different procedure. While the almost exclusive utility of the rule is for the condemnation of real property, it also applies to the condemnation of personal property, either as an incident to real property or as the sole object of the proceeding, when permitted or required by statute. See 38 U.S.C. [former]  438j (World War Veterans Relief Act); 42 U.S.C.  1805, 1811, 1813 (Atomic Energy Act); 50 U.S.C.  79 (Nitrates Act); 50 U.S.C.  161166 (Helium Gas Act). Requisitioning of personal property with the right in the owner to sue the United States, where the compensation cannot be agreed upon (see 42 U.S.C.  1813, supra, for example) will continue to be the normal method of acquiring personal property and Rule 71A in no way interferes with or restricts any such right. Only where the law requires or permits the formal procedure of condemnation to be utilized will the rule have any applicability to the acquisition of personal property. Rule 71A is not intended to and does not supersede the Act of February 26, 1931, ch. 307 46 Stat. 1421 40 U.S.C. 3114 United States v. 76,800 Acres, More or Less, of Land, in Bryan and Liberty Counties, Ga United States v. 17,280 Acres of Land, More or Less, Situated in Saunders County, Nebr U.S.C., Title 33:  594 (When immediate possession of land may be taken; for a work of river and harbor improvements). U.S.C., Title 42:  1813(b) (When immediate possession may be taken under Atomic Energy Act). U.S.C., Title 50:  171 (Acquisition of land by the Secretary of the Army for national defense).  632 App. (Second War Powers Act, 1942; acquisition of real property for war purposes by the Secretary of the Army, the Secretary of the Navy, and others). Note to Subdivision (b) Note to Subdivision (c) Since the general standards of pleading are stated in other rules, paragraph (2) prescribes only the necessary detail for condemnation proceedings. Certain statutes allow the United States to acquire title or possession immediately upon commencement of an action. See the Act of February 26, 1931, ch. 307 46 Stat. 1421 40 U.S.C. 3114 The last sentence of paragraph (2) enables the court to expedite the distribution of a deposit, in whole or in part, as soon as pertinent facts of ownership, value and the like are established. See also subdivision (j). The signing of the complaint is governed by Rule 11. Note to Subdivision (d) While under Rule 4(f) the territorial limits of a summons are normally the territorial limits of the state in which the district court is held, the territorial limits for personal service of a notice under Rule 71A (d)(3) are those of the nation. This extension of process is here proper since the aim of the condemnation proceeding is not to enforce any personal liability and the property owner is helped, not imposed upon, by the best type of service possible. If personal service cannot be made either because the defendants whereabouts cannot be ascertained, or, if ascertained, the defendant cannot be personally served, as where he resides in a foreign country such as Canada or Mexico, then service by publication is proper. The provisions for this type of service are set forth in the rule and are in no way governed by 28 U.S.C.  118. Note to Subdivision (e) Note to Subdivision (f) Note to Subdivision (g) Note to Subdivision (h) Congress has specially constituted a tribunal for the trial of the issue of just compensation in two instances: condemnation under the Tennessee Valley Authority Act; and condemnation in the District of Columbia. These tribunals are retained for reasons set forth in the General Statement: 3. Adjustment of Rule to Statutory Provisions, supra. Subdivision (h) also has prospective application so that if Congress should create another special tribunal, that tribunal will determine the issue of just compensation. Subject to these exceptions the general method of trial of that issue is to be by jury if any party demands it, otherwise that issue, as well as all other issues, are to be tried by the court. As to the TVA procedure that is continued, U.S.C., Title 16,  831x requires that three commissioners be appointed to fix the compensation; that exceptions to their award are to be heard by three district judges (unless the parties stipulate for a lesser number) and that the district judges try the question de novo; that an appeal to the circuit court of appeals may be taken within 30 days from the filing of the decision of the district judges; and that the circuit court of appeals shall on the record fix compensation without regard to the awards of findings theretofore made by the commissioners or the district judges. The mode of fixing compensation in the District of Columbia, which is also continued, is prescribed in U.S.C., [former] Title 40,  361386. Under  371 the court is required in all cases to order the selection of a jury of five from among not less than 20 names, drawn from the special box provided by law. They must have the usual qualifications of jurors and in addition must be freeholders of the District, and not in the service of the United States or the District. A special oath is administered to the chosen jurors. The trial proceeds in the ordinary way, except that the jury is allowed to separate after they have begun to consider their verdict. There is no constitutional right to jury trial in a condemnation proceeding. Bauman v. Ross Note to Subdivision (i) Note to Subdivision (j) 40 U.S.C. 3114(a) United States v. Miller The court is to make distribution of the deposit as promptly as the facts of the case warrant. See also subdivision (c)(2). Note to Subdivision (k) Boom Co. v. Patterson Searl v. School District No. 2 Madisonville Traction Co. v. Saint Bernard Mining Co Franzen v. Chicago, M. & St. P. Ry. Co Any condition affecting the substantial right of a litigant attached by state law is to be observed and enforced, such as making a deposit in court where the power of eminent domain is conditioned upon so doing. (See also subdivision (j)). Subject to this qualification, subdivision (k) provides that in cases involving the state power of eminent domain, the practice prescribed by other subdivisions of Rule 71A shall govern. Note to Subdivision (l) Grand River Dam Authority v. Jarvis United States v. 125.71 Acres of Land in Loyalhanna Tp., Westmoreland County, Pa Notes of Advisory Committee on Rules1963 Amendment This amendment conforms to the amendment of Rule 4(f). Notes of Advisory Committee on Rules1985 Amendment Rule 71A(h) provides that except when Congress has provided otherwise, the issue of just compensation in a condemnation case may be tried by a jury if one of the parties so demands, unless the court in its discretion orders the issue determined by a commission of three persons. In 1980, the Comptroller General of the United States in a Report to Congress recommended that use of the commission procedure should be encouraged in order to improve and expedite the trial of condemnation cases. The Report noted that long delays were being caused in many districts by such factors as crowded dockets, the precedence given criminal cases, the low priority accorded condemnation matters, and the high turnover of Assistant United States Attorneys. The Report concluded that revising Rule 71A to make the use of the commission procedure more attractive might alleviate the situation. Accordingly, Rule 71A(h) is being amended in a number of respects designed to assure the quality and utility of a Rule 71A commission. First, the amended Rule will give the court discretion to appoint, in addition to the three members of a commission, up to two additional persons as alternate commissioners who would hear the case and be available, at any time up to the filing of the decision by the three-member commission, to replace any commissioner who becomes unable or disqualified to continue. The discretion to appoint alternate commissioners can be particularly useful in protracted cases, avoiding expensive retrials that have been required in some cases because of the death or disability of a commissioner. Prior to replacing a commissioner an alternate would not be present at, or participate in, the commissions deliberations. Second, the amended Rule requires the court, before appointment, to advise the parties of the identity and qualifications of each prospective commissioner and alternate. The court then may authorize the examination of prospective appointees by the parties and each party has the right to challenge for cause. The objective is to insure that unbiased and competent commissioners are appointed. The amended Rule does not prescribe a qualification standard for appointment to a commission, although it is understood that only persons possessing background and ability to appraise real estate valuation testimony and to award fair and just compensation on the basis thereof would be appointed. In most situations the chairperson should be a lawyer and all members should have some background qualifying them to weigh proof of value in the real estate field and, when possible, in the particular real estate market embracing the land in question. The amended Rule should give litigants greater confidence in the commission procedure by affording them certain rights to participate in the appointment of commission members that are roughly comparable to the practice with regard to jury selection. This is accomplished by giving the court permission to allow the parties to examine prospective commissioners and by recognizing the right of each party to object to the appointment of any person for cause. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment The references to the subdivisions of Rule 4 are deleted in light of the revision of that rule. Committee Notes on Rules2003 Amendment The references to specific subdivisions of Rule 53 are deleted or revised to reflect amendments of Rule 53. Committee Notes on Rules2007 Amendment The language of Rule 71A has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 71A has been redesignated as Rule 71.1 to conform to the designations used for all other rules added within the original numbering system. Rule 71.1(e) allows a defendant to appear without answering. Former form 28 (now form 60) includes information about this right in the Rule 71.1(d)(2) notice. It is useful to confirm this practice in the rule. The information that identifies the attorney is changed to include telephone number and electronic-mail address, in line with similar amendments to Rules 11(a) and 26(g)(1). Committee Notes on Rules2009 Amendment The times set in the former rule at 20 days have been revised to 21 days. See the Note to Rule 6. Amendment by Public Law 1988Subd. (e). Pub. L. 100690 Apr. 25, 1988 Aug. 1, 1988 [Rule 71A. Renumbered Rule 71.1] Rule 72. Magistrate Judges: Pretrial Order (a) Nondispositive Matters. When a pretrial matter not dispositive of a partys claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. (b) Dispositive Motions and Prisoner Petitions. (1)  Findings and Recommendations. (2)  Objections. (3)  Resolving Objections. (As added Apr. 28, 1983 Aug. 1, 1983 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Rules1983 Subdivision (a) No specific procedures or timetables for raising objections to the magistrates rulings on nondispositive matters are set forth in the Magistrates Act. The rule fixes a 10-day period in order to avoid uncertainty and provide uniformity that will eliminate the confusion that might arise if different periods were prescribed by local rule in different districts. It also is contemplated that a party who is successful before the magistrate will be afforded an opportunity to respond to objections raised to the magistrates ruling. The last sentence of subdivision (a) specifies that reconsideration of a magistrates order, as provided for in the Magistrates Act, shall be by the district judge to whom the case is assigned. This rule does not restrict experimentation by the district courts under 28 U.S.C.  636(b)(3) involving references of matters other than pretrial matters, such as appointment of counsel, taking of default judgments, and acceptance of jury verdicts when the judge is unavailable. Subdivision (b) This rule implements the statutory procedures for making objections to the magistrates proposed findings and recommendations. The 10-day period, as specified in the statute, is subject to Rule 6(e) which provides for an additional 3-day period when service is made by mail. Although no specific provision appears in the Magistrates Act, the rule specifies a 10-day period for a party to respond to objections to the magistrates recommendation. Implementing the statutory requirements, the rule requires the district judge to whom the case is assigned to make a de novo determination of those portions of the report, findings, or recommendations to which timely objection is made. The term de novo signifies that the magistrates findings are not protected by the clearly erroneous doctrine, but does not indicate that a second evidentiary hearing is required. See United States v. Raddatz Masters and Magistrates Part II: The American Analogue Campbell v. United States Dist. Court Park Motor Mart, Inc. v. Ford Motor Co United States v. Walters Notes of Advisory Committee on Rules1991 Amendment This amendment is intended to eliminate a discrepancy in measuring the 10 days for serving and filing objections to a magistrates action under subdivisions (a) and (b) of this Rule. The rule as promulgated in 1983 required objections to the magistrates handling of nondispositive matters to be served and filed within 10 days of entry of the order, but required objections to dispositive motions to be made within 10 days of being served with a copy of the recommended disposition. Subdivision (a) is here amended to conform to subdivision (b) to avoid any confusion or technical defaults, particularly in connection with magistrate orders that rule on both dispositive and nondispositive matters. The amendment is also intended to assure that objections to magistrates orders that are not timely made shall not be considered. Compare Notes of Advisory Committee on Rules1993 Amendment This revision is made to conform the rule to changes made by the Judicial Improvements Act of 1990. Committee Notes on Rules2007 Amendment The language of Rule 72 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2009 Amendment The times set in the former rule at 10 days have been revised to 14 days. See the Note to Rule 6. Committee Notes on Rules2023 Amendment Rule 72(b)(1) is amended to permit the clerk to serve a copy of a magistrate judges recommended disposition by any of the means provided in Rule 5(b). Rule 73. Magistrate Judges: Trial by Consent; Appeal (a) Trial by Consent. When authorized under 28 U.S.C.  636(c), a magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C.  636(c)(5). (b) Consent Procedure. (1)  In General. (2)  Reminding the Parties About Consenting. (3)  Vacating a Referral. (c) Appealing a Judgment. In accordance with 28 U.S.C.  636(c)(3), an appeal from a judgment entered at a magistrate judges direction may be taken to the court of appeals as would any other appeal from a district-court judgment. (As added Apr. 28, 1983 Aug. 1, 1983 Mar. 2, 1987 Aug. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 11, 1997 Dec. 1, 1997 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1983 Subdivision (a) The Federal Magistrate Act of 1979 Subdivision (b) The rule opts for a uniform approach in implementing the consent provision by directing the clerk to notify the parties of their opportunity to elect to proceed before a magistrate and by requiring the execution and filing of a consent form or forms setting forth the election. However, flexibility at the local level is preserved in that local rules will determine how notice shall be communicated to the parties, and local rules will specify the time period within which an election must be made. The last paragraph of subdivision (b) reiterates the provision in 28 U.S.C.  636(c)(6) for vacating a reference to the magistrate. Subdivision (c) Subdivision (d) The Federal Magistrate Act of 1979 Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment This revision is made to conform the rule to changes made by the Judicial Improvements Act of 1990. The Act requires that, when being reminded of the availability of a magistrate judge, the parties be advised that withholding of consent will have no adverse substantive consequences. They may, however, be advised if the withholding of consent will have the adverse procedural consequence of a potential delay in trial. Notes of Advisory Committee on Rules1997 Amendment The Federal Courts Improvement Act of 1996 repealed the former provisions of 28 U.S.C.  636(c)(4) and (5) that enabled parties that had agreed to trial before a magistrate judge to agree also that appeal should be taken to the district court. Rule 73 is amended to conform to this change. Rules 74, 75, and 76 are abrogated for the same reason. The portions of Form 33 and Form 34 that referred to appeals to the district court also are deleted. Committee Notes on Rules2007 Amendment The language of Rule 73 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 74. [Abrogated ( Apr. 11, 1997 Dec. 1, 1997  Notes of Advisory Committee on Rules1997 Amendment Rule 74 is abrogated for the reasons described in the Note to Rule 73. Committee Notes on Rules2007 Rule 74 was abrogated in 1997 to reflect repeal of the statute providing for appeal from a magistrate judges judgment to the district court. The rule number is reserved for possible future use. Rule 75. [Abrogated ( Apr. 11, 1997 Dec. 1, 1997  Notes of Advisory Committee on Rules1997 Amendment Rule 75 is abrogated for the reasons described in the Note to Rule 73. Committee Notes on Rules2007 Rule 75 was abrogated in 1997 to reflect repeal of the statute providing for appeal from a magistrate judges judgment to the district court. The rule number is reserved for possible future use. Rule 76. [Abrogated ( Apr. 11, 1997 Dec. 1, 1997  Notes of Advisory Committee on Rules1997 Amendment Rule 76 is abrogated for the reasons described in the Note to Rule 73. Committee Notes on Rules2007 Rule 76 was abrogated in 1997 to reflect repeal of the statute providing for appeal from a magistrate judges judgment to the district court. The rule number is reserved for possible future use. TITLE X. DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS; ISSUING ORDERS Rule 77. Conducting Business; Clerks Authority; Notice of an Order or Judgment (a) When Court Is Open. Every district court is considered always open for filing any paper, issuing and returning process, making a motion, or entering an order. (b) Place for Trial and Other Proceedings. Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom. Any other act or proceeding may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the district. But no hearingother than one ex partemay be conducted outside the district unless all the affected parties consent. (c) Clerks Office Hours; Clerks Orders. (1)  Hours. (2)  Orders. (A) issue process; (B) enter a default; (C) enter a default judgment under Rule 55(b)(1); and (D) act on any other matter that does not require the courts action. (d) Serving Notice of an Order or Judgment. (1)  Service. (2)  Time to Appeal Not Affected by Lack of Notice. (As amended Dec. 27, 1946 Mar. 19, 1948 Jan. 21, 1963 July 1, 1963 Dec. 4, 1967 July 1, 1968 Mar. 1, 1971 July 1, 1971 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 23, 2001 Dec. 1, 2001 Apr. 30, 2007 Dec. 1, 2007 Apr. 25, 2014 Dec. 1, 2014  Notes of Advisory Committee on Rules1937 This rule states the substance of U.S.C., Title 28,  13 [now 452] (Courts open as courts of admiralty and equity). Compare [former] Equity Rules 1 (District Court Always Open For Certain PurposesOrders at Chambers), 2 (Clerks Office Always Open, Except, Etc.), 4 (Notice of Orders), and 5 (Motions Grantable of Course by Clerk). Notes of Advisory Committee on Rules1946 Amendment Rule 77(d) has been amended to avoid such situations as the one arising in Hill v. Hawes Because of Rule 6(c), which abolished the old rule that the expiration of the term ends a courts power over its judgment, the effect of the decision in Hill v. Hawes Rule 77(d) as amended makes it clear that notification by the clerk of the entry of a judgment has nothing to do with the starting of the time for appeal; that time starts to run from the date of entry of judgment and not from the date of notice of the entry. Notification by the clerk is merely for the convenience of litigants. And lack of such notification in itself has no effect upon the time for appeal; but in considering an application for extension of time for appeal as provided in Rule 73(a), the court may take into account, as one of the factors affecting its decision, whether the clerk failed to give notice as provided in Rule 77(d) or the party failed to receive the clerks notice. It need not, however, extend the time for appeal merely because the clerks notice was not sent or received. It would, therefore, be entirely unsafe for a party to rely on absence of notice from the clerk of the entry of a judgment, or to rely on the adverse partys failure to serve notice of the entry of a judgment. Any party may, of course, serve timely notice of the entry of a judgment upon the adverse party and thus preclude a successful application, under Rule 73(a), for the extension of the time for appeal. Notes of Advisory Committee on Rules1963 Amendment Subdivision (c) Subdivision (d) Notes of Advisory Committee on Rules1968 Amendment The provisions of Rule 73(a) are incorporated in Rule 4(a) of the Federal Rules of Appellate Procedure. Notes of Advisory Committee on Rules1971 Amendment The amendment adds Columbus Day to the list of legal holidays. See the Note accompanying the amendment of Rule 6(a). Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. The Birthday of Martin Luther King, Jr. is added to the list of national holidays in Rule 77. Notes of Advisory Committee on Rules1991 Amendment This revision is a companion to the concurrent amendment to Rule 4 of the Federal Rules of Appellate Procedure. The purpose of the revisions is to permit district courts to ease strict sanctions now imposed on appellants whose notices of appeal are filed late because of their failure to receive notice of entry of a judgment. See, e.g. Tucker v. Commonwealth Land Title Ins. Co Ashby Enterprises, Ltd. v. Weitzman, Dym & Associates In re OPM Leasing Services, Inc Spika v. Village of Lombard, Ill Hall v. Community Mental Health Center of Beaver County Wilson v. Atwood v. Stark cert dismissed Case v. BASF Wyandotte cert. denied Hensley v. Chesapeake & Ohio R.R.Co Buckeye Cellulose Corp. v. Electric Construction Co Failure to receive notice may have increased in frequency with the growth in the caseload in the clerks offices. The present strict rule imposes a duty on counsel to maintain contact with the court while a case is under submission. Such contact is more difficult to maintain if counsel is outside the district, as is increasingly common, and can be a burden to the court as well as counsel. The effect of the revisions is to place a burden on prevailing parties who desire certainty that the time for appeal is running. Such parties can take the initiative to assure that their adversaries receive effective notice. An appropriate procedure for such notice is provided in Rule 5. The revised rule lightens the responsibility but not the workload of the clerks offices, for the duty of that office to give notice of entry of judgment must be maintained. Committee Notes on Rules2001 Amendment Rule 77(d) is amended to reflect changes in Rule 5(b). A few courts have experimented with serving Rule 77(d) notices by electronic means on parties who consent to this procedure. The success of these experiments warrants express authorization. Because service is made in the manner provided in Rule 5(b), party consent is required for service by electronic or other means described in Rule 5(b)(2)(D). The same provision is made for a party who wishes to ensure actual communication of the Rule 77(d) notice by also serving notice. Changes Made After Publication and Comments Committee Notes on Rules2007 Amendment The language of Rule 77 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2014 Amendment The amendment corrects an inadvertent failure to revise the cross-reference to Rule 6(a) when what was Rule 6(a)(4)(A) became Rule 6(a)(6)(A).  References in Text The Federal Rules of Appellate Procedure, referred to in subd. (d)(2), are set out in this Appendix. Rule 78. Hearing Motions; Submission on Briefs (a) Providing a Regular Schedule for Oral Hearings. A court may establish regular times and places for oral hearings on motions. (b) Providing for Submission on Briefs. By rule or order, the court may provide for submitting and determining motions on briefs, without oral hearings. (As amended Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Compare [former] Equity Rule 6 (Motion Day) with the first paragraph of this rule. The second paragraph authorizes a procedure found helpful for the expedition of business in some of the Federal and State courts. See Rule 43(e) of these rules dealing with evidence on motions. Compare Civil Practice Rules of the Municipal Court of Chicago Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2007 Amendment The language of Rule 78 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 16 has superseded any need for the provision in former Rule 78 for orders for the advancement, conduct, and hearing of actions. Rule 79. Records Kept by the Clerk (a) Civil Docket. (1)  In General. (2)  Items to be Entered. (A) papers filed with the clerk; (B) process issued, and proofs of service or other returns showing execution; and (C) appearances, orders, verdicts, and judgments. (3)  Contents of Entries; Jury Trial Demanded. (b) Civil Judgments and Orders. The clerk must keep a copy of every final judgment and appealable order; of every order affecting title to or a lien on real or personal property; and of any other order that the court directs to be kept. The clerk must keep these in the form and manner prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. (c) Indexes; Calendars. Under the courts direction, the clerk must: (1) keep indexes of the docket and of the judgments and orders described in Rule 79(b); and (2) prepare calendars of all actions ready for trial, distinguishing jury trials from nonjury trials. (d) Other Records. The clerk must keep any other records required by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Jan. 21, 1963 July 1, 1963 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Compare [former] Equity Rule 3 (Books Kept by Clerk and Entries Therein). In connection with this rule, see also the following statutes of the United States: U.S.C., Title 5:  301 [see Title 28,  526] (Officials for investigation of official acts, records and accounts of marshals, attorneys, clerks of courts, United States commissioners, referees and trustees)  318 [former] (Accounts of district attorneys) U.S.C., Title 28:  556 [former] (Clerks of district courts; books open to inspection)  567 [now 751] (Same; accounts)  568 [now 751] (Same; reports and accounts of moneys received; dockets)  813 [former] (Indices of judgment debtors to be kept by clerks) And see Instructions to United States Attorneys, Marshals, Clerks and Commissioners issued by the Attorney General of the United States. Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) August 7, 1939 53 Stat. 1223 Subdivision (b) Proposed Improvements in the Administration of the Offices of Clerks of United States District Courts section 687 of Title 18 Subdivision (c) The other changes in the subdivision merely conform with those made in subdivision (b) of the rule. Subdivision (d) supra. Notes of Advisory Committee on Rules1948 Amendment The change in nomenclature conforms to the official designation in Title 28, U.S.C.,  231. Notes of Advisory Committee on Rules1963 Amendment The terminology is clarified without any change of the prescribed practice. See amended Rule 58, and the Advisory Committees Note thereto. Committee Notes on Rules2007 Amendment The language of Rule 79 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 80. Stenographic Transcript as Evidence  If stenographically reported testimony at a hearing or trial is admissible in evidence at a later trial, the testimony may be proved by a transcript certified by the person who reported it. (As amended Dec. 27, 1946 Mar. 19, 1948 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) Note to Subdivision (b) Note to Subdivision (c) Notes of Advisory Committee on Rules1946 Amendment Subdivisions (a) and (b) of Rule 80 have been abrogated because of Public Law 222, 78th Cong., c. 3, 2d Sess., approved Jan. 20, 1944 July 1, 1945 Subdivision (c) of Rule 80 (Stenographic Report or Transcript as Evidence) has been retained unchanged. Committee Notes on Rules2007 Amendment The language of Rule 80 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. TITLE XI. GENERAL PROVISIONS Rule 81. Applicability of the Rules in General; Removed Actions (a) Applicability to Particular Proceedings. (1)  Prize Proceedings. (2)  Bankruptcy. (3)  Citizenship. (4)  Special Writs. (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions. (5)  Proceedings Involving a Subpoena. (6)  Other Proceedings. (A) 7 U.S.C.  292, 499g(c), for reviewing an order of the Secretary of Agriculture; (B) 9 U.S.C., relating to arbitration; (C) 15 U.S.C.  522, for reviewing an order of the Secretary of the Interior; (D) 15 U.S.C.  715d(c), for reviewing an order denying a certificate of clearance; (E) 29 U.S.C.  159, 160, for enforcing an order of the National Labor Relations Board; (F) 33 U.S.C.  918, 921, for enforcing or reviewing a compensation order under the Longshore and Harbor Workers Compensation Act; and (G) 45 U.S.C.  159, for reviewing an arbitration award in a railway-labor dispute. (b) Scire Facias and Mandamus. The writs of scire facias and mandamus are abolished. Relief previously available through them may be obtained by appropriate action or motion under these rules. (c) Removed Actions. (1)  Applicability. (2)  Further Pleading. (A) 21 days after receivingthrough service or otherwisea copy of the initial pleading stating the claim for relief; (B) 21 days after being served with the summons for an initial pleading on file at the time of service; or (C) 7 days after the notice of removal is filed. (3)  Demand for a Jury Trial. (A)  As Affected by State Law. (B)  Under Rule 38. (i) it files a notice of removal; or (ii) it is served with a notice of removal filed by another party. (d) Law Applicable. (1)  State Law Defined. (2)  State Defined. (3)  Federal Statute Defined in the District of Columbia. (As amended Dec. 28, 1939 Apr. 3, 1941 Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Apr. 30, 1951 Aug. 1, 1951 Jan. 21, 1963 July 1, 1963 Feb. 28, 1966 July 1, 1966 Dec. 4, 1967 July 1, 1968 Mar. 1, 1971 July 1, 1971 Mar. 2, 1987 Aug. 1, 1987 Apr. 23, 2001 Dec. 1, 2001 Apr. 29, 2002 Dec. 1, 2002 Apr. 30, 2007 Dec. 1, 2007 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules1937 Note to Subdivision (a) June 19, 1934 March 4, 1909 For examples of statutes which are preserved by paragraph (2) see: U.S.C., Title 8, ch. 9 [former] (Naturalization); Title 28, ch. 14 [now 153] (Habeas corpus); Title 28,  377a377c (Quo warranto); and such forfeiture statutes as U.S.C., Title 7,  116 (Misbranded seeds, confiscation), and Title 21,  14 [see 334(b)] (Pure Food and Drug Actcondemnation of adulterated or misbranded food; procedure). See also 443 Cans of Frozen Eggs Product v. U.S For examples of statutes which under paragraph (7) will continue to govern procedure in condemnation cases, see U.S.C., [former] Title 40,  258 (Condemnation of realty for sites for public building, etc., procedure); U.S.C., Title 16,  831x (Condemnation by Tennessee Valley Authority); U.S.C., [former] Title 40,  120 (Acquisition of lands for public use in District of Columbia); [former] Title 40, ch. 7 (Acquisition of lands in District of Columbia for use of United States; condemnation). Note to Subdivision (b) U.S.C., Title 7:  222 (Federal Trade Commission powers adopted for enforcement of Stockyards Act) (By reference to Title 15,  49) U.S.C., Title 15:  49 (Enforcement of Federal Trade Commission orders and antitrust laws)  77t(c) (Enforcement of Securities and Exchange Commission orders and Securities Act of 1933)  78u(f) (Same; Securities Exchange Act of 1934)  79r(g) (Same; Public Utility Holding Company Act of 1935) U.S.C., Title 16:  820 (Proceedings in equity for revocation or to prevent violations of license of Federal Power Commission licensee)  825m(b) (Mandamus to compel compliance with Federal Water Power Act, etc.) U.S.C., Title 19:  1333(c) (Mandamus to compel compliance with orders of Tariff Commission, etc.) U.S.C., Title 28:  377 [now 1651] (Power to issue writs)  572 [now 1923] (Fees, attorneys, solicitors and proctors)  778 [former] (Death of parties; substitution of executor or administrator). Compare Rule 25(a) (Substitution of parties; death), and the note thereto. U.S.C., Title 33:  495 (Removal of bridges over navigable waters) U.S.C., Title 45:  88 (Mandamus against Union Pacific Railroad Company)  153(p) (Mandamus to enforce orders of Adjustment Board under Railway Labor Act)  185 (Same; National Air Transport Adjustment Board) (By reference to  153) U.S.C., Title 47:  11 (Powers of Federal Communications Commission)  401(a) (Enforcement of Federal Communications Act and orders of Commission)  406 (Same; compelling furnishing of facilities; mandamus) U.S.C., Title 49:  19a( l  20(9) [see 11703(a), 14703, 15903(a)] (Jurisdiction to compel compliance with interstate commerce laws by mandamus) For comparable provisions in state practice see Ill. Rev. Stat. (1937), ch. 110,  179; Calif. Code Civ. Proc. (Deering, 1937)  802. Note to Subdivision (c) U.S.C., Title 28:  71 [now 1441, 1445, 1447] (Removal of suits from state courts)  72 [now 1446, 1447] (Same; procedure)  73 [former] (Same; suits under grants of land from different states)  74 [now 1443, 1446, 1447] (Same; causes against persons denied civil rights)  75 [now 1446] (Same; petitioner in actual custody of state court)  76 [now 1442, 1446, 1447] (Same; suits and prosecutions against revenue officers)  77 [now 1442] (Same; suits by aliens)  78 [now 1449] (Same; copies of records refused by clerk of state court)  79 [now 1450] (Same; previous attachment bonds or orders)  80 [now 1359, 1447, 1919] (Same; dismissal or remand)  81 [now 1447] (Same; proceedings in suits removed)  82 [former] (Same; record; filing and return)  83 [now 1447, 1448] (Service of process after removal) U.S.C., Title 28,  72 [now 1446, 1447], supra Note to Subdivision (e) Notes of Advisory Committee on Rules1946 Amendment Subdivision (a) Lynn v. United States Mount Tivy Winery, Inc. v. Lewis United States to use of Foster Wheeler Corp. v. American Surety Co. of New York Boerner v. United States United States v. Gallagher United States v. Sherwood Lynn v. United States, supra In Lynn v. United States 48 Stat. 1064 28 U.S.C. 2072 March 3, 1887 24 Stat. 505 28 U.S.C. 2071 United States v. Sherwood, supra Sherwood Subdivision (a)(2) Schenk v. Plummer For correct application of the rules in proceedings for forfeiture of property for violation of a statute of the United States, such as under U.S.C., Title 22,  405 (seizure of war materials intended for unlawful export) or U.S.C., Title 21,  334(b) (Federal Food, Drug, and Cosmetic Act; formerly Title 21,  14, Pure Food and Drug Act), see Reynal v. United States United States v. 108 Boxes of Cheddar Cheese Subdivision (a)(3) Perkins v. Endicott Johnson Corp Walling v. News Printing, Inc McCrone v. United States Goodyear Tire & Rubber Co. v. National Labor Relations Board Cudahy Packing Co. v. National Labor Relations Board e.g., Peoples Natural Gas Co. v. Federal Power Commission Martin v. Chandis Securities Co Collier on Bankruptcy Collier, op. cit. supra Collier, op. cit. supra Collier, op. cit. supra Subdivision (a)(6) That portion of subdivision (a)(6) making the rules applicable to proceedings for enforcement or review of compensation orders under the Longshoremens and Harbor Workers Compensation Act [33 U.S.C.  901 et seq.] was added by an amendment made pursuant to order of the Court, December 28, 1939 January 3, 1941 Subdivision (c) Subdivision (f) e.g Sage v. United States Smietanka v. Indiana Steel Co United States v. Nunnally Investment Co Notes of Advisory Committee on Rules1948 Amendment Subdivision (a)Paragraph (1) March 4, 1909 July 30, 1947 61 Stat. 652 Paragraph (2) Paragraph (3) February 12, 1925 July 30, 1947 61 Stat. 669 May 20, 1926 44 Stat. 585 inter alia supra. Paragraph (4) Paragraph (5) July 5, 1935 June 23, 1947 61 Stat. 143 Paragraph (6) December 17, 1943 57 Stat. 600 September 13, 1888 March 4, 1927 June 25, 1936 49 Stat. 1921 October 14, 1940 54 Stat. 1137 June 29, 1906 Subdivision (c) The petition for removal of a civil action or proceedings shall be filed within 20 days after the receipt through service or otherwise by the defendant of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based. * *  Note The phrase, and who has not already waived his right to such trial, which previously appeared in the fourth sentence of subsection (c) of Rule 81, was deleted in order to afford a party who has waived his right to trial by jury in a state court an opportunity to assert that right upon removal to a federal court. The change in the last sentence of subdivision (c) reflects the fact that a transcript of the record is no longer required under  1446, and safeguards the right to demand a jury trial, where the right has not already been waived and where the parties are at issueall necessary pleadings have been served. Only, rarely will the last sentence of Rule 81(c) have any applicability, since removal will normally occur before the pleadings are closed, and in this usual situation Rule 38(b) applies and safeguards the right to jury trial. See Moores Federal practice (1st ed.) 3020. Subdivision (d) Subdivision (e) Notes of Advisory Committee on Rules1963 Amendment Subdivision (a)(4) 53 Stat. 1433 Subdivision (a)(6) Subdivision (c) Zakoscielny v. Waterman Steamship Corp Talley v. American Bakeries Co Rehrer v. Service Trucking Co Moores Federal Practice Federal Practice and Procedure Petsel v. Chicago, B. & Q.R. Co Nelson v. American Nat. Bank & Trust Co In order still further to avoid unintended waivers of jury trial, the amendment provides that where by State law applicable in the court from which the case is removed a party is entitled to jury trial without making an express demand, he need not make a demand after removal. However, the district court for calendar or other purposes may on its own motion direct the parties to state whether they demand a jury, and the court must make such a direction upon the request of any party. Under the amendment a district court may find it convenient to establish a routine practice of giving these directions to the parties in appropriate cases. Subdivision (f) As to a special problem arising under Rule 25 (Substitution of parties) in actions for refund of taxes, see the Advisory Committees Note to the amendment of Rule 25(d), effective July 19, 1961 Moores Federal Practice Notes of Advisory Committee on Rules1966 Amendment See Note to Rule 1, supra. Statutory proceedings to forfeit property for violation of the laws of the United States, formerly governed by the admiralty rules, will be governed by the unified and supplemental rules. See Supplemental Rule A. Upon the recommendation of the judges of the United States District Court for the District of Columbia, the Federal Rules of Civil Procedure are made applicable to probate proceedings in that court. The exception with regard to adoption proceedings is removed because the court no longer has jurisdiction of those matters; and the words mental health are substituted for lunacy to conform to the current characterization in the District. The purpose of the amendment to paragraph (3) is to permit the deletion from Rule 73(a) of the clause unless a shorter time is provided by law. The 10 day period fixed for an appeal under 45 U.S.C.  159 is the only instance of a shorter time provided for appeals in civil cases. Apart from the unsettling effect of the clause, it is eliminated because its retention would preserve the 15 day period heretofore allowed by 28 U.S.C.  2107 for appeals from interlocutory decrees in admiralty, it being one of the purposes of the amendment to make the time for appeals in civil and admiralty cases uniform under the unified rules. See Advisory Committees Note to subdivision (a) of Rule 73. Notes of Advisory Committee on Rules1968 Amendment The amendments eliminate inappropriate references to appellate procedure. Notes of Advisory Committee on Rules1971 Amendment Title 28, U.S.C.,  2243 now requires that the custodian of a person detained must respond to an application for a writ of habeas corpus within three days unless for good cause additional time, not exceeding twenty days, is allowed. The amendment increases to forty days the additional time that the district court may allow in habeas corpus proceedings involving persons in custody pursuant to a judgment of a state court. The substantial increase in the number of such proceedings in recent years has placed a considerable burden on state authorities. Twenty days has proved in practice too short a time in which to prepare and file the return in many such cases. Allowance of additional time should, of course, be granted only for good cause. While the time allowed in such a case for the return of the writ may not exceed forty days, this does not mean that the state must necessarily be limited to that period of time to provide for the federal court the transcript of the proceedings of a state trial or plenary hearing if the transcript must be prepared after the habeas corpus proceeding has begun in the federal court. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2001 Amendment Former Copyright Rule 1 made the Civil Rules applicable to copyright proceedings except to the extent the Civil Rules were inconsistent with Copyright Rules. Abrogation of the Copyright Rules leaves the Civil Rules fully applicable to copyright proceedings. Rule 81(a)(1) is amended to reflect this change. The District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. 91358 84 Stat. 473 The reference to incorporation of the Civil Rules in the Federal Rules of Bankruptcy Procedure has been restyled. Changes Made After Publication and Comments Committee Notes on Rules2002 Amendment This amendment brings Rule 81(a)(2) into accord with the Rules Governing  2254 and  2255 proceedings. In its present form, Rule 81(a)(2) includes return-time provisions that are inconsistent with the provisions in the Rules Governing  2254 and 2255. The inconsistency should be eliminated, and it is better that the time provisions continue to be set out in the other rules without duplication in Rule 81. Rule 81 also directs that the writ be directed to the person having custody of the person detained. Similar directions exist in the  2254 and  2255 rules, providing additional detail for applicants subject to future custody. There is no need for partial duplication in Rule 81. The provision that the civil rules apply to the extent that practice is not set forth in the  2254 and  2255 rules dovetails with the provisions in Rule 11 of the  2254 rules and Rule 12 of the  2255 rules. Changes Made After Publication and Comment. Committee Notes on Rules2007 Amendment The language of Rule 81 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 81(c) has been revised to reflect the amendment of 28 U.S.C.  1446(a) that changed the procedure for removal from a petition for removal to a notice of removal. Former Rule 81(e), drafted before the decision in Erie R.R. v. Tompkins Erie Former Rule 81(f) is deleted. The office of district director of internal revenue was abolished by restructuring under the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105206 July 22, 1998 Committee Notes on Rules2009 Amendment The times set in the former rule at 5, 10, and 20 days have been revised to 7, 14, and 21 days, respectively. See the Note to Rule 6. Several Rules incorporate local state practice. Rule 81(d) now provides that the term state includes, where appropriate, the District of Columbia. The definition is expanded to include any commonwealth or territory of the United States. As before, these entities are included only where appropriate. They are included for the reasons that counsel incorporation of state practice. For example, state holidays are recognized in computing time under Rule 6(a). Other, quite different, examples are Rules 64(a), invoking state law for prejudgment remedies, and 69(a)(1), relying on state law for the procedure on execution. Including commonwealths and territories in these and other rules avoids the gaps that otherwise would result when the federal rule relies on local practice rather than provide a uniform federal approach. Including them also establishes uniformity between federal courts and local courts in areas that may involve strong local interests, little need for uniformity among federal courts, or difficulty in defining a uniform federal practice that integrates effectively with local practice. Adherence to a local practice may be refused as not appropriate when the local practice would impair a significant federal interest. Changes Made after Publication and Comment.  References in Text The Federal Rules of Bankruptcy Procedure, referred to in subd. (a)(2), are set out in the Appendix to Title 11, Bankruptcy. The Rules Governing Section 2254 Cases and the Rules Governing Section 2255 Cases, referred to in subd. (a)(4)(A), are set out in notes under the respective sections in Title 28, Judiciary and Judicial Procedure. The Longshore and Harbor Workers Compensation Act, referred to in subd. (a)(6)(F), is act Mar. 4, 1927, ch. 509 44 Stat. 1424 section 901 of Title 33 Effective Date of Abrogation Abrogation of par. (7) of subdivision (a) of this rule as effective August 1, 1951 Rule 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 governed by 28 U.S.C.  1390. (As amended Dec. 29, 1948 Oct. 20, 1949 Feb. 28, 1966 July 1, 1966 Apr. 23, 2001 Dec. 1, 2001 Apr. 30, 2007 Dec. 1, 2007 Apr. 28, 2016 Dec. 1, 2016  Notes of Advisory Committee on Rules1937 These rules grant extensive power of joining claims and counterclaims in one action, but, as this rule states, such grant does not extend federal jurisdiction. The rule is declaratory of existing practice under the [former] Federal Equity Rules with regard to such provisions as [former] Equity Rule 26 on Joinder of Causes of Action and [former] Equity Rule 30 on Counterclaims. Compare Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure Notes of Advisory Committee on Rules1948 Amendment The change in nomenclature conforms to the official designation of district courts in Title 28, U.S.C.,  132(a). Notes of Advisory Committee on Rules1966 Amendment Title 28, U.S.C.  1391(b) provides: A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law. This provision cannot appropriately be applied to what were formerly suits in admiralty. The rationale of decisions holding it inapplicable rests largely on the use of the term civil action; i.e., a suit in admiralty is not a civil action within the statute. By virtue of the amendment to Rule 1, the provisions of Rule 2 convert suits in admiralty into civil actions. The added sentence is necessary to avoid an undesirable change in existing law with respect to venue. Committee Notes on Rules2001 Amendment The final sentence of Rule 82 is amended to delete the reference to 28 U.S.C.  1393, which has been repealed. Style Comment The recommendation that the change be made without publication carries with it a recommendation that style changes not be made. Styling would carry considerable risks. The first sentence of Rule 82, for example, states that the Civil Rules do not extend or limit the jurisdiction of the United States district courts. That sentence is a flat lie if jurisdiction includes personal or quasi-in rem jurisdiction. The styling project on this rule requires publication and comment. Committee Notes on Rules2007 Amendment The language of Rule 82 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Committee Notes on Rules2016 Amendment Rule 82 is amended to reflect the enactment of 28 U.S.C.  1390 and the repeal of  1392. Rule 83. Rules by District Courts; Judges Directives (a) Local Rules. (1)  In General. (2)  Requirement of Form. (b) Procedure When There Is No Controlling Law. A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C.  2072 and 2075, and the districts local rules. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement. (As amended Apr. 29, 1985 Aug. 1, 1985 Apr. 27, 1995 Dec. 1, 1995 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 This rule substantially continues U.S.C., Title 28,  731 [now 2071] (Rules of practice in district courts) with the additional requirement that copies of such rules and amendments be furnished to the Supreme Court of the United States. See [former] Equity Rule 79 (Additional Rules by District Court). With the last sentence compare United States Supreme Court Admiralty Rules (1920), Rule 44 (Right of Trial Courts To Make Rules of Practice) (originally promulgated in 1842). Notes of Advisory Committee on Rules1985 Amendment Rule 83, which has not been amended since the Federal Rules were promulgated in 1938, permits each district to adopt local rules not inconsistent with the Federal Rules by a majority of the judges. The only other requirement is that copies be furnished to the Supreme Court. The widespread adoption of local rules and the modest procedural prerequisites for their promulgation have led many commentators to question the soundness of the process as well as the validity of some rules, See 12 C. Wright & A. Miller, Federal Practice and Procedure: Civil Is There an Over-Exercise of Local Rule-Making Powers by the United States District Courts Rule 83 and the Local Federal Rules The Local Rules of Civil Procedure in the Federal District CourtsA Survey The amended Rule attempts, without impairing the procedural validity of existing local rules, to enhance the local rulemaking process by requiring appropriate public notice of proposed rules and an opportunity to comment on them. Although some district courts apparently consult the local bar before promulgating rules, many do not, which has led to criticism of a process that has district judges consulting only with each other. See 12 C. Wright & A. Miller, supra The New Local Rules for Federal Practice In Iowa Reform of Court Rule-Making Procedures The amended Rule does not detail the procedure for giving notice and an opportunity to be heard since conditions vary from district to district. Thus, there is no explicit requirement for a public hearing, although a district may consider that procedure appropriate in all or some rulemaking situations. See generally, Weinstein, supra The amended Rule provides that a local rule will take effect upon the date specified by the district court and will remain in effect unless amended by the district court or abrogated by the judicial council. The effectiveness of a local rule should not be deferred until approved by the judicial council because that might unduly delay promulgation of a local rule that should become effective immediately, especially since some councils do not meet frequently. Similarly, it was thought that to delay a local rules effectiveness for a fixed period of time would be arbitrary and that to require the judicial council to abrogate a local rule within a specified time would be inconsistent with its power under 28 U.S.C.  332 (1976) to nullify a local rule at any time. The expectation is that the judicial council will examine all local rules, including those currently in effect, with an eye toward determining whether they are valid and consistent with the Federal Rules, promote inter-district uniformity and efficiency, and do not undermine the basic objectives of the Federal Rules. The amended Rule requires copies of local rules to be sent upon their promulgation to the judicial council and the Administrative Office of the United States Courts rather than to the Supreme Court. The Supreme Court was the appropriate filing place in 1938, when Rule 83 originally was promulgated, but the establishment of the Administrative Office makes it a more logical place to develop a centralized file of local rules. This procedure is consistent with both the Criminal and the Appellate Rules. See Fed.R.Crim.P. 57(a); Fed.R.App.P. 47. The Administrative Office also will be able to provide improved utilization of the file because of its recent development of a Local Rules Index. The practice pursued by some judges of issuing standing orders has been controversial, particularly among members of the practicing bar. The last sentence in Rule 83 has been amended to make certain that standing orders are not inconsistent with the Federal Rules or any local district court rules. Beyond that, it is hoped that each district will adopt procedures, perhaps by local rule, for promulgating and reviewing single-judge standing orders. Notes of Advisory Committee on Rules1995 Amendment Subdivison (a) The amendment also requires that the numbering of local rules conform with any uniform numbering system that may be prescribed by the Judicial Conference. Lack of uniform numbering might create unnecessary traps for counsel and litigants. A uniform numbering system would make it easier for an increasingly national bar and for litigants to locate a local rule that applies to a particular procedural issue. Paragraph (2) is new. Its aim is to protect against loss of rights in the enforcement of local rules relating to matters of form. For example, a party should not be deprived of a right to a jury trial because its attorney, unaware ofor forgettinga local rule directing that jury demands be noted in the caption of the case, includes a jury demand only in the body of the pleading. The proscription of paragraph (2) is narrowly drawncovering only violations attributable to nonwillful failure to comply and only those involving local rules directed to matters of form. It does not limit the courts power to impose substantive penalties upon a party if it or its attorney contumaciously or willfully violates a local rule, even one involving merely a matter of form. Nor does it affect the courts power to enforce local rules that involve more than mere matters of formfor example, a local rule requiring parties to identify evidentiary matters relied upon to support or oppose motions for summary judgment. Subdivision (b) This rule recognizes that courts rely on multiple directives to control practice. Some courts regulate practice through the published Federal Rules and the local rules of the court. Some courts also have used internal operating procedures, standing orders, and other internal directives. Although such directives continue to be authorized, they can lead to problems. Counsel or litigants may be unaware of various directives. In addition, the sheer volume of directives may impose an unreasonable barrier. For example, it may be difficult to obtain copies of the directives. Finally, counsel or litigants may be unfairly sanctioned for failing to comply with a directive. For these reasons, the amendment to this rule disapproves imposing any sanction or other disadvantage on a person for noncompliance with such an internal directive, unless the alleged violator has been furnished actual notice of the requirement in a particular case. There should be no adverse consequence to a party or attorney for violating special requirements relating to practice before a particular court unless the party or attorney has actual notice of those requirements. Furnishing litigants with a copy outlining the judges practicesor attaching instructions to a notice setting a case for conference or trialwould suffice to give actual notice, as would an order in a case specifically adopting by reference a judges standing order and indicating how copies can be obtained. Committee Notes on Rules2007 Amendment The language of Rule 83 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 84. [Abrogated ( Apr. 29, 2015 Dec. 1, 2015  Committee Notes on Rules2015 Amendment Rule 84 was adopted when the Civil Rules were established in 1938 to indicate, subject to the provisions of these rules, the simplicity and brevity of statement which the rules contemplate. The purpose of providing illustrations for the rules, although useful when the rules were adopted, has been fulfilled. Accordingly, recognizing that there are many alternative sources for forms, including the website of the Administrative Office of the United States Courts, the websites of many district courts, and local law libraries that contain many commercially published forms, Rule 84 and the Appendix of Forms are no longer necessary and have been abrogated. The abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8. Rule 85. Title  These rules may be cited as the Federal Rules of Civil Procedure. (As amended Apr. 30, 2007 Dec. 1, 2007  Committee Notes on Rules2007 Amendment The language of Rule 85 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Rule 86. Effective Dates (a) In General. These rules and any amendments take effect at the time specified by the Supreme Court, subject to 28 U.S.C.  2074. They govern: (1) proceedings in an action commenced after their effective date; and (2) proceedings after that date in an action then pending unless: (A) the Supreme Court specifies otherwise; or (B) the court determines that applying them in a particular action would be infeasible or work an injustice. (b)  December If any provision in Rules 15.1, 673, or 7786 conflicts with another law, priority in time for the purpose of 28 U.S.C.  2072(b) is not affected by the amendments taking effect on December 1, 2007 (As amended Dec. 27, 1946 Mar. 19, 1948 Dec. 29, 1948 Oct. 20, 1949 Apr. 17, 1961 July 19, 1961 Mar. 18, 1963 July 1, 1963 Apr. 30, 2007 Dec. 1, 2007  Notes of Advisory Committee on Rules1937 See [former] Equity Rule 81 (These Rules Effective February 1, 1913 Notes of Advisory Committee on Rules1948 Amendment By making the general amendments effective on the day following the adjournment of the first regular session of Congress to which they are transmitted, subdivision (c), supra Committee Notes on Rules2007 Amendment The language of Rule 86 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The subdivisions that provided a list of the effective dates of the original Civil Rules and amendments made up to 1963 are deleted as no longer useful. Rule 86(b) is added to clarify the relationship of amendments taking effect on December 1, 2007 December 1, 2007 Effective Date of 1966 Amendment; Transmission to Congress; Rescission Sections 24 of the Order of the Supreme Court, dated Feb. 28, 1966 2. That the foregoing amendments and additions to the Rules of Civil Procedure shall take effect on July 1, 1966 3. That the Chief Justice be, and he hereby is, authorized to transmit to the Congress the foregoing amendments and additions to the Rules of Civil Procedure in accordance with the provisions of Title 28, U.S.C.,  2072 and 2073. 4. That: (a) subdivision (c) of Rule 6 of the Rules of Civil Procedure for the United States District Courts promulgated by this court on December 20, 1937 September 16, 1938 March 4, 1909 June 1, 1909 July 1, 1909 December 6, 1920 March 7, 1921 July 1, 1966 Rule 87. Civil Rules Emergency (a) Conditions for an Emergency. The Judicial Conference of the United States may declare a Civil Rules emergency if it determines that extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, substantially impair the courts ability to perform its functions in compliance with these rules. (b) Declaring an Emergency. (1)  Content. (A) must designate the court or courts affected; (B) adopts all the emergency rules in Rule 87(c) unless it excepts one or more of them; and (C) must be limited to a stated period of no more than 90 days. (2)  Early Termination. (3)  Additional Declarations. (c) Emergency Rules. (1)  Emergency Rules 4(e), (h)(1), (i), and (j)(2), and for serving a minor or incompetent person. (2)  Emergency Rule 6(b)(2). (A)  Extension of Time to File Certain Motions. (B)  Effect on Time to Appeal. (i) if the court denies an extension, the time to file an appeal runs for all parties from the date the order denying the motion to extend is entered; (ii) if the court grants an extension, a motion authorized by the court and filed within the extended period is, for purposes of Appellate Rule 4(a)(4)(A), filed within the time allowed by the Federal Rules of Civil Procedure; and (iii) if the court grants an extension and no motion authorized by the court is made within the extended period, the time to file an appeal runs for all parties from the expiration of the extended period. (C)  Declaration Ends. (As added Apr. 24, 2023 Dec. 1, 2023  Committee Notes on Rules2023 Subdivision (a) The range of the extraordinary circumstances that might give rise to a rules emergency is wide, in both time and space. An emergency may be localfamiliar examples include hurricanes, flooding, explosions, or civil unrest. The circumstance may be more widely regional, or national. The emergency may be tangible or intangible, including such events as a pandemic or disruption of electronic communications. The concept is pragmatic and functional. The determination of what relates to public health or safety, or what affects physical or electronic access to a court, need not be literal. The ability of the court to perform its functions in compliance with these rules may be affected by the ability of the parties to comply with a rule in a particular emergency. A shutdown of interstate travel in response to an external threat, for example, might constitute a rules emergency even though there is no physical barrier that impedes access to the court or the parties. Responsibility for declaring a rules emergency is vested exclusively in the Judicial Conference. But a court may, absent a declaration by the Judicial Conference, utilize all measures of discretion and all the flexibility already embedded in the character and structure of the Civil Rules. A pragmatic and functional determination whether there is a Civil Rules emergency should be carefully limited to problems that cannot be resolved by construing, administering, and employing the flexibility deliberately incorporated in the structure of the Civil Rules. The rules rely extensively on sensible accommodations among the litigants and on wise management by judges when the litigants are unable to resolve particular problems. The effects of an emergency on the ability of the court and the parties to comply with a rule should be determined in light of the flexible responses to particular situations generally available under that rule. And even if a rules emergency is declared, the court and parties should explore the opportunities for flexible use of a rule before turning to rely on an emergency departure. Adoption of this rule, or a declaration of a rules emergency, does not imply any limitation of the courts ability to respond to emergency circumstances by wise use of the discretion and opportunities for effective adaptation that inhere in the Civil Rules themselves. Subdivision (b) A declaration must be limited to a stated period of no more than 90 days, but the Judicial Conference may terminate a declaration for one or more courts before the end of the stated period. A declaration may be succeeded by a new declaration made under this rule. And additional declarations may be made under this rule before an earlier declaration terminates. An additional declaration may modify an earlier declaration to respond to new emergencies or a better understanding of the original emergency. Changes may be made in the courts affected by the emergency or in the emergency rules adopted by the declaration. Subdivision (c) Emergency Rules 4 The final sentence of Emergency Rule 4 addresses a situation in which a declaration of a civil rules [sic] emergency ends after an order for service is entered but before service is completed. Service may be completed under the order unless the court modifies or rescinds the order. A modification that continues to allow a method of service specified by the order but not within Rule 4, or rescission that requires service by a method within Rule 4, may provide for effective service. But it may be better to permit completion of service in compliance with the original order. For example, the summons and complaint may have been delivered to a commercial carrier that has not yet delivered them to the party to be served. Allowing completion and return of confirmation of delivery may be the most efficient course. Allowing completion of a method authorized by the order may be particularly important when a claim is governed by a statute of limitations that requires actual service within a stated period after the action is filed. Emergency Rule 6(b)(2) Rule 6(b)(1)(A) authorizes the court to extend the time to act under Rules 50(b), 50(d), 52(b), 59(b), 59(d), 59(e), and 60(b) only if it acts, or if a request is made, before the original time allowed by those rules or an extension granted under Emergency Rule 6(b)(2) expires. For all but Rule 60(b), the time allowed by those rules is 28 days after the entry of judgment. For Rule 60(b), the time allowed is governed by Rule 60(c)(1), which requires that the motion be made within a reasonable time, and, for motions under Rule 60(b)(1), (2), or (3), no more than a year after the entry of judgment. The maximum extension is not more than 30 days after entry of the order granting an extension. If the court acts on its own, extensions for Rule 50, 52, and 59 motions can extend no later than 58 days after the entry of judgment unless the court acts before expiration of an earlier extension. If an extension is sought by motion, an extension can extend no later than 30 days after entry of the order granting the extension. Appeal time must be reset to support an orderly determination whether to order an extension and, if an extension is ordered, to make and dispose of any motion authorized by the extension. Subparagraph 6(b)(2)(B) integrates the emergency rule with Appellate Rule 4(a)(4)(A) for four separate situations. The first situation is governed by the initial text: Unless the time to appeal would otherwise be longer. One example that illustrates this situation would be a motion by the plaintiff for a new trial within the time allowed by Rule 59, followed by a timely motion by the defendant for an extension of time to file a renewed motion for judgment as a matter of law under Rule 50(b). The court denies the motion for an extension without yet ruling on the plaintiffs motion. The time to appeal after denial of the plaintiffs motion is longer for all parties than the time after denial of the defendants motion for an extension. Item (B)(i) resets appeal time to run for all parties from the date of entry of an order denying a motion to extend. Items (B)(ii) and (iii) reset appeal time after the court grants an extended period to file a post-judgment motion. Appellate Rule 4(a)(4)(A) is incorporated, giving the authorized motion the effect of a motion filed within the time allowed by the Federal Rules of Civil Procedure. If more than one authorized motion is filed, appeal time is reset to run from the order disposing of the last such remaining motion. If no authorized motion is made, appeal time runs from the expiration of the extended period. These provisions for resetting appeal time are supported for the special timing provisions for Rule 60(b) motions by a parallel amendment of Appellate Rule 4(a)(4)(A)(vi) that resets appeal time on a timely motion for relief under Rule 60 if the motion is filed within the time allowed for filing a motion under Rule 59. This Rule 4 provision, as amended, will assure that a Rule 60(b) motion resets appeal time for review of the final judgment only if it is filed within the 28 days ordinarily allowed for post-judgment motions under Rule 59 or any extended period for filing a Rule 59 motion that a court might authorize under Emergency Rule 6(b)(2). A timely Rule 60(b) motion filed after that period, whether it is timely under Rule 60(c)(1) or under an extension ordered under Emergency Rule 6(b)(2), supports an appeal from disposition of the Rule 60(b) motion, but does not support an appeal from the original final judgment. Emergency Rule 6(b)(2)(C) addresses a situation in which a declaration of a Civil Rules emergency ends after an order is entered, whether the order grants or denies an extension. This rule preserves the integration of Emergency Rule 6(b)(2) with the appeal time provisions of Appellate Rule 4(a)(4)(A). An act authorized by the order, which may be either a motion or an appeal, may be completed under the order. If the order denies a timely motion for an extension, the time to appeal runs from the order. If an extension is granted, a motion may be filed within the extended period. Appeal time starts to run from the order that disposes of the last remaining authorized motion. If no authorized motion is filed within the extended period, appeal time starts to run on expiration of the extended period. Any other approach would sacrifice opportunities for post-judgment relief or appeal that could have been preserved if no emergency rule motion had been made. Emergency rules provisions were added to the Appellate, Bankruptcy, Civil, and Criminal Rules in the wake of the COVID19 pandemic. They were made as uniform as possible. But each set of rules serves distinctive purposes, shaped by different origins, traditions, functions, and needs. Different provisions were compelled by these different purposes.  References in Text Civil Rules, referred to in subd. (a), probably means the Federal Rules of Civil Procedure, which are set out in this Appendix. Appellate Rule 4(a)(4)(A), referred to in subd. (c)(2)(B)(ii), probably means Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure, which is set out in this Appendix. APPENDIX OF FORMS  [Abrogated ( Apr. 29, 2015 Dec. 1, 2015 SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME CLAIMS AND ASSET FORFEITURE ACTIONS 1 1 April 12, 2006 December 1, 2006 Notes of Advisory Committee on Rules The amendments to the Federal Rules of Civil Procedure to unify the civil and admiralty procedure, together with the Supplemental Rules for Certain Admiralty and Maritime Claims, completely superseded the Admiralty Rules, effective July 1, 1966  Notes of Advisory Committee on Rules1985 Amendment Since their promulgation in 1966, the Supplemental Rules for Certain Admiralty and Maritime Claims have preserved the special procedures of arrest and attachment unique to admiralty law. In recent years, however, these Rules have been challenged as violating the principles of procedural due process enunciated in the United States Supreme Courts decision in Sniadach v. Family Finance Corp Fuentes v. Shevin Mitchell v. W. T. Grant Co North Georgia Finishing, Inc. v. Di-Chem, Inc Several commentators have found the Supplemental Rules lacking on some or all five grounds. E.g The Constitutional Challenge to Maritime Seizures The Conflict Between the Supreme Court Admiralty Rules and Sniadach-Fuentes: A Collision Course? Amstar Corp. v. S/S Alexandros T Merchants National Bank of Mobile v. The Dredge General G. L. Gillespie cert. dismissed Alyeska Pipeline Service Co. v. The Vessel Bay Ridge appeal dismissed Polar Shipping, Ltd. v. Oriental Shipping Corp Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S. A. de Navegacion Grand Bahama Petroleum Co. v. Canadian Transportation Agencies, Ltd Techem Chem Co. v. M/T Choyo Maru Due Process in Admiralty Arrest and Attachment Due to the controversy and uncertainty that have surrounded the Supplemental Rules, local admiralty bars and the Maritime Law Association of the United States have sought to strengthen the constitutionality of maritime arrest and attachment by encouraging promulgation of local admiralty rules providing for prompt post-seizure hearings. Some districts also adopted rules calling for judicial scrutiny of applications for arrest or attachment. Nonetheless, the result has been a lack of uniformity and continued concern over the constitutionality of the existing practice. The amendments that follow are intended to provide rules that meet the requirements prescribed by the Supreme Court and to develop uniformity in the admiralty practice. Rule A. Scope of Rules (1) These Supplemental Rules apply to: (A) the procedure in admiralty and maritime claims within the meaning of Rule 9(h) with respect to the following remedies: (i) maritime attachment and garnishment, (ii) actions in rem, (iii) possessory, petitory, and partition actions, and (iv) actions for exoneration from or limitation of liability; (B) forfeiture actions in rem arising from a federal statute; and (C) the procedure in statutory condemnation proceedings analogous to maritime actions in rem, whether within the admiralty and maritime jurisdiction or not. Except as otherwise provided, references in these Supplemental Rules to actions in rem include such analogous statutory condemnation proceedings. (2) The Federal Rules of Civil Procedure also apply to the foregoing proceedings except to the extent that they are inconsistent with these Supplemental Rules. (As added Feb. 28, 1966 July 1, 1966 Apr. 12, 2006 Dec. 1, 2006  Notes of Advisory Committee on Rules Certain distinctively maritime remedies must be preserved in unified rules. The commencement of an action by attachment or garnishment has heretofore been practically unknown in federal jurisprudence except in admiralty, although the amendment of Rule 4(e) effective July 1, 1963 Arrest of the person and imprisonment for debt are not included because these remedies are not peculiarly maritime. The practice is not uniform but conforms to state law. See 2 Benedict  286; 28 U.S.C.,  2007; FRCP 64, 69. The relevant provisions of Admiralty Rules 2, 3, and 4 are unnecessary or obsolete. No attempt is here made to compile a complete and self-contained code governing these distinctively maritime remedies. The more limited objective is to carry forward the relevant provisions of the former Rules of Practice for Admiralty and Maritime Cases, modernized and revised to some extent but still in the context of history and precedent. Accordingly, these Rules are not to be construed as limiting or impairing the traditional power of a district court, exercising the admiralty and maritime jurisdiction, to adapt its procedures and its remedies in the individual case, consistently with these rules, to secure the just, speedy, and inexpensive determination of every action. (See Swift & Co., Packers v. Compania Columbiana Del Caribe, S/A Committee Notes on Rules2006 Amendment Rule A is amended to reflect the adoption of Rule G to govern procedure in civil forfeiture actions. Rule G(1) contemplates application of other Supplemental Rules to the extent that Rule G does not address an issue. One example is the Rule E(4)(c) provision for arresting intangible property. Rule B. In Personam Actions: Attachment and Garnishment (1)  When Available; Complaint, Affidavit, Judicial Authorization, and Process In an in personam action: (a) If a defendant is not found within the district when a verified complaint praying for attachment and the affidavit required by Rule B(1)(b) are filed, a verified complaint may contain a prayer for process to attach the defendants tangible or intangible personal propertyup to the amount sued forin the hands of garnishees named in the process. (b) The plaintiff or the plaintiffs attorney must sign and file with the complaint an affidavit stating that, to the affiants knowledge, or on information and belief, the defendant cannot be found within the district. The court must review the complaint and affidavit and, if the conditions of this Rule B appear to exist, enter an order so stating and authorizing process of attachment and garnishment. The clerk may issue supplemental process enforcing the courts order upon application without further court order. (c) If the plaintiff or the plaintiffs attorney certifies that exigent circumstances make court review impracticable, the clerk must issue the summons and process of attachment and garnishment. The plaintiff has the burden in any post-attachment hearing under Rule E(4)(f) to show that exigent circumstances existed. (d) (i) If the property is a vessel or tangible property on board a vessel, the summons, process, and any supplemental process must be delivered to the marshal for service. (ii) If the property is other tangible or intangible property, the summons, process, and any supplemental process must be delivered to a person or organization authorized to serve it, who may be (A) a marshal; (B) someone under contract with the United States; (C) someone specially appointed by the court for that purpose; or, (D) in an action brought by the United States, any officer or employee of the United States. (e) The plaintiff may invoke state-law remedies under Rule 64 for seizure of person or property for the purpose of securing satisfaction of the judgment. (2)  Notice to Defendant No default judgment may be entered except upon proofwhich may be by affidavitthat: (a) the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4; (b) the plaintiff or the garnishee has mailed to the defendant the complaint, summons, and process of attachment or garnishment, using any form of mail requiring a return receipt; or (c) the plaintiff or the garnishee has tried diligently to give notice of the action to the defendant but could not do so. (3) Answer. (a)  By Garnishee. (b)  By Defendant (As added Feb. 28, 1966 July 1, 1966 Apr. 29, 1985 Aug. 1, 1985 Mar. 2, 1987 Aug. 1, 1987 Apr. 17, 2000 Dec. 1, 2000 Apr. 25, 2005 Dec. 1, 2005 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules Subdivision (1) This preserves the traditional maritime remedy of attachment and garnishment, and carries forward the relevant substance of Admiralty Rule 2. In addition, or in the alternative, provision is made for the use of similar state remedies made available by the amendment of Rule 4(e) effective July 1, 1963 The rule follows closely the language of Admiralty Rule 2. No change is made with respect to the property subject to attachment. No change is made in the condition that makes the remedy available. The rules have never defined the clause, if the defendant shall not be found within the district, and no definition is attempted here. The subject seems one best left for the time being to development on a case-by-case basis. The proposal does shift from the marshal (on whom it now rests in theory) to the plaintiff the burden of establishing that the defendant cannot be found in the district. A change in the context of the practice is brought about by Rule 4(f), which will enable summons to be served throughout the state instead of, as heretofore, only within the district. The Advisory Committee considered whether the rule on attachment and garnishment should be correspondingly changed to permit those remedies only when the defendant cannot be found within the state and concluded that the remedy should not be so limited. The effect is to enlarge the class of cases in which the plaintiff may proceed by attachment or garnishment although jurisdiction of the person of the defendant may be independently obtained. This is possible at the present time where, for example, a corporate defendant has appointed an agent within the district to accept service of process but is not carrying on activities there sufficient to subject it to jurisdiction. ( Seawind Compania, S.A. v. Crescent Line, Inc United States v. Cia. Naviera Continental, S.A Process of attachment or garnishment will be limited to the district. See Rule E(3)(a). Subdivision (2) The former Admiralty Rules did not provide for notice to the defendant in attachment and garnishment proceedings. None is required by the principles of due process, since it is assumed that the garnishee or custodian of the property attached will either notify the defendant or be deprived of the right to plead the judgment as a defense in an action against him by the defendant. Harris v. Balk Pennoyer v. Neff In the usual case the defendant is notified of the pendency of the proceedings by the garnishee or otherwise, and appears to claim the property and to make his answer. Hence notice by mail is not routinely required in all cases, but only in those in which the defendant has not appeared prior to the time when a default judgment is demanded. The rule therefore provides only that no default judgment shall be entered except upon proof of notice, or of inability to give notice despite diligent efforts to do so. Thus the burden of giving notice is further minimized. In some cases the plaintiff may prefer to give notice by serving process in the usual way instead of simply by mail. (Rule 4(d).) In particular, if the defendant is in a foreign country the plaintiff may wish to utilize the modes of notice recently provided to facilitate compliance with foreign laws and procedures (Rule 4(i)). The rule provides for these alternatives. The rule does not provide for notice by publication because there is no problem concerning unknown claimants, and publication has little utility in proportion to its expense where the identity of the defendant is known. Subdivision (3) Subdivision (a) incorporates the substance of Admiralty Rule 36. The Admiralty Rules were silent as to when the garnishee and the defendant were to answer. See also 2 Benedict ch. XXIV. The rule proceeds on the assumption that uniform and definite periods of time for responsive pleadings should be substituted for return days (see the discussion under Rule C(6), below). Twenty days seems sufficient time for the garnishee to answer (cf. FRCP 12(a)), and an additional 10 days should suffice for the defendant. When allowance is made for the time required for notice to reach the defendant this gives the defendant in attachment and garnishment approximately the same time that defendants have to answer when personally served. Notes of Advisory Committee on Rules1985 Amendment Rule B(1) has been amended to provide for judicial scrutiny before the issuance of any attachment or garnishment process. Its purpose is to eliminate doubts as to whether the Rule is consistent with the principles of procedural due process enunciated by the Supreme Court in Sniadach v. Family Finance Corp Fuentes v. Shevin Mitchell v. W. T. Grant Co North Georgia Finishing, Inc. v. Di-Chem, Inc Grand Bahama Petroleum Co. v. Canadian Transportation Agencies, Ltd Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion Polar Shipping Ltd. v. Oriental Shipping Corp The rule envisions that the order will issue when the plaintiff makes a prima facie showing that he has a maritime claim against the defendant in the amount sued for and the defendant is not present in the district. A simple order with conclusory findings is contemplated. The reference to review by the court is broad enough to embrace review by a magistrate as well as by a district judge. The new provision recognizes that in some situations, such as when the judge is unavailable and the ship is about to depart from the jurisdiction, it will be impracticable, if not impossible, to secure the judicial review contemplated by Rule B(1). When exigent circumstances exist, the rule enables the plaintiff to secure the issuance of the summons and process of attachment and garnishment, subject to a later showing that the necessary circumstances actually existed. This provision is intended to provide a safety valve without undermining the requirement of preattachment scrutiny. Thus, every effort to secure judicial review, including conducting a hearing by telephone, should be pursued before resorting to the exigent-circumstances procedure. Rule B(1) also has been amended so that the garnishee shall be named in the process rather than in the complaint. This should solve the problem presented in Filia Compania Naviera, S.A. v. Petroship, S.A Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2000 Amendment Rule B(1) is amended in two ways, and style changes have been made. The service provisions of Rule C(3) are adopted in paragraph (d), providing alternatives to service by a marshal if the property to be seized is not a vessel or tangible property on board a vessel. The provision that allows the plaintiff to invoke state attachment and garnishment remedies is amended to reflect the 1993 amendments of Civil Rule 4. Former Civil Rule 4(e), incorporated in Rule B(1), allowed general use of state quasi-in-rem jurisdiction if the defendant was not an inhabitant of, or found within, the state. Rule 4(e) was replaced in 1993 by Rule 4(n)(2), which permits use of state law to seize a defendants assets only if personal jurisdiction over the defendant cannot be obtained in the district where the action is brought. Little purpose would be served by incorporating Rule 4(n)(2) in Rule B, since maritime attachment and garnishment are available whenever the defendant is not found within the district, a concept that allows attachment or garnishment even in some circumstances in which personal jurisdiction also can be asserted. In order to protect against any possibility that elimination of the reference to state quasi-in-rem jurisdiction remedies might seem to defeat continued use of state security devices, paragraph (e) expressly incorporates Civil Rule 64. Because Rule 64 looks only to security, not jurisdiction, the former reference to Rule E(8) is deleted as no longer relevant. Rule B(2)(a) is amended to reflect the 1993 redistribution of the service provisions once found in Civil Rule 4(d) and (i). These provisions are now found in many different subdivisions of Rule 4. The new reference simply incorporates Rule 4, without designating the new subdivisions, because the function of Rule B(2) is simply to describe the methods of notice that suffice to support a default judgment. Style changes also have been made. Committee Notes on Rules2005 Amendment Rule B(1) is amended to incorporate the decisions in Heidmar, Inc. v. Anomina Ravennate Di Armamento Sp.A. of Ravenna Navieros InterAmericanos, S.A. v. M/V Vasilia Express Changes Made After Publication and Comment Committee Notes on Rules2009 Amendment The time set in the former rule at 20 days has been revised to 21 days. See the Note to Rule 6. Rule C. In Rem Actions: Special Provisions (1)  When Available An action in rem may be brought: (a) To enforce any maritime lien; (b) Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto. Except as otherwise provided by law a party who may proceed in rem may also, or in the alternative, proceed in personam against any person who may be liable. Statutory provisions exempting vessels or other property owned or possessed by or operated by or for the United States from arrest or seizure are not affected by this rule. When a statute so provides, an action against the United States or an instrumentality thereof may proceed on in rem principles. (2)  Complaint In an action in rem the complaint must: (a) be verified; (b) describe with reasonable particularity the property that is the subject of the action; and (c) state that the property is within the district or will be within the district while the action is pending. (3) Judicial Authorization and Process. (a)  Arrest Warrant. (i) The court must review the complaint and any supporting papers. If the conditions for an in rem action appear to exist, the court must issue an order directing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject of the action. (ii) If the plaintiff or the plaintiffs attorney certifies that exigent circumstances make court review impracticable, the clerk must promptly issue a summons and a warrant for the arrest of the vessel or other property that is the subject of the action. The plaintiff has the burden in any post-arrest hearing under Rule E(4)(f) to show that exigent circumstances existed. (b)  Service. (i) If the property that is the subject of the action is a vessel or tangible property on board a vessel, the warrant and any supplemental process must be delivered to the marshal for service. (ii) If the property that is the subject of the action is other property, tangible or intangible, the warrant and any supplemental process must be delivered to a person or organization authorized to enforce it, who may be: (A) a marshal; (B) someone under contract with the United States; (C) someone specially appointed by the court for that purpose; or, (D) in an action brought by the United States, any officer or employee of the United States. (c)  Deposit in Court (d)  Supplemental Process (4) Notice. No notice other than execution of process is required when the property that is the subject of the action has been released under Rule E(5). If the property is not released within 14 days after execution, the plaintiff must promptlyor within the time that the court allowsgive public notice of the action and arrest in a newspaper designated by court order and having general circulation in the district, but publication may be terminated if the property is released before publication is completed. The notice must specify the time under Rule C(6) to file a statement of interest in or right against the seized property and to answer. This rule does not affect the notice requirements in an action to foreclose a preferred ship mortgage under 46 U.S.C.  31301 et seq., as amended. (5)  Ancillary Process In any action in rem in which process has been served as provided by this rule, if any part of the property that is the subject of the action has not been brought within the control of the court because it has been removed or sold, or because it is intangible property in the hands of a person who has not been served with process, the court may, on motion, order any person having possession or control of such property or its proceeds to show cause why it should not be delivered into the custody of the marshal or other person or organization having a warrant for the arrest of the property, or paid into court to abide the judgment; and, after hearing, the court may enter such judgment as law and justice may require. (6) Responsive Pleading; Interrogatories. (a)  Statement of Interest; Answer. (i) a person who asserts a right of possession or any ownership interest in the property that is the subject of the action must file a verified statement of right or interest: (A) within 14 days after the execution of process, or (B) within the time that the court allows; (ii) the statement of right or interest must describe the interest in the property that supports the persons demand for its restitution or right to defend the action; (iii) an agent, bailee, or attorney must state the authority to file a statement of right or interest on behalf of another; and (iv) a person who asserts a right of possession or any ownership interest must serve an answer within 21 days after filing the statement of interest or right. (b)  Interrogatories (As added Feb. 28, 1966 July 1, 1966 Apr. 29, 1985 Aug. 1, 1985 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 17, 2000 Dec. 1, 2000 Apr. 29, 2002 Dec. 1, 2002 Apr. 25, 2005 Dec. 1, 2005 Apr. 12, 2006 Dec. 1, 2006 Apr. 23, 2008 Dec. 1, 2008 Mar. 26, 2009 Dec. 1, 2009  Notes of Advisory Committee on Rules Subdivision (1). This rule is designed not only to preserve the proceeding in rem as it now exists in admiralty cases, but to preserve the substance of Admiralty Rules 1318. The general reference to enforcement of any maritime lien is believed to state the existing law, and is an improvement over the enumeration in the former Admiralty Rules, which is repetitious and incomplete (e.g., there was no reference to general average). The reference to any maritime lien is intended to include liens created by state law which are enforceable in admiralty. The main concern of Admiralty Rules 1318 was with the question whether certain actions might be brought in rem or also, or in the alternative, in personam. Essentially, therefore, these rules deal with questions of substantive law, for in general an action in rem may be brought to enforce any maritime lien, and no action in personam may be brought when the substantive law imposes no personal liability. These rules may be summarized as follows: 1. Cases in which the plaintiff may proceed in rem and/or in personam: a. Suits for seamens wages; b. Suits by materialmen for supplies, repairs, etc.; c. Suits for pilotage; d. Suits for collision damages; e. Suits founded on mere maritime hypothecation; f. Suits for salvage. 2. Cases in which the plaintiff may proceed only in personam: a. Suits for assault and beating. 3. Cases in which the plaintiff may proceed only in rem: a. Suits on bottomry bonds. The coverage is complete, since the rules omit mention of many cases in which the plaintiff may proceed in rem or in personam. This revision proceeds on the principle that it is preferable to make a general statement as to the availability of the remedies, leaving out conclusions on matters of substantive law. Clearly it is not necessary to enumerate the cases listed under Item 1, above, nor to try to complete the list. The rule eliminates the provision of Admiralty Rule 15 that actions for assault and beating may be brought only in personam. A preliminary study fails to disclose any reason for the rule. It is subject to so many exceptions that it is calculated to receive rather than to inform. A seaman may sue in rem when he has been beaten by a fellow member of the crew so vicious as to render the vessel unseaworthy. The Rolph The David Evans The Western States The specific reference to bottomry bonds is omitted because, as a matter of hornbook substantive law, there is no personal liability on such bonds. Subdivision (2). This incorporates the substance of Admiralty Rules 21 and 22. Subdivision (3). Derived from Admiralty Rules 10 and 37. The provision that the warrant is to be issued by the clerk is new, but is assumed to state existing law. There is remarkably little authority bearing on Rule 37, although the subject would seem to be an important one. The rule appears on its face to have provided for a sort of ancillary process, and this may well be the case when tangible property, such as a vessel, is arrested, and intangible property such as freight is incidentally involved. It can easily happen, however, that the only property against which the action may be brought is intangible, as where the owner of a vessel under charter has a lien on subfreights. See 2 Benedict  299 and cases cited. In such cases it would seem that the order to the person holding the fund is equivalent to original process, taking the place of the warrant for arrest. That being so, it would also seem that (1) there should be some provision for notice, comparable to that given when tangible property is arrested, and (2) it should not be necessary, as Rule 37 provided, to petition the court for issuance of the process, but that it should issue as of course. Accordingly the substance of Rule 37 is included in the rule covering ordinary process, and notice will be required by Rule C(4). Presumably the rules omit any requirement of notice in these cases because the holder of the funds (e.g., the cargo owner) would be required on general principles (cf. Harris v. Balk Subdivision (4). This carries forward the notice provision of Admiralty Rule 10, with one modification. Notice by publication is too expensive and ineffective a formality to be routinely required. When, as usually happens, the vessel or other property is released on bond or otherwise there is no point in publishing notice; the vessel is freed from the claim of the plaintiff and no other interest in the vessel can be affected by the proceedings. If however, the vessel is not released, general notice is required in order that all persons, including unknown claimants, may appear and be heard, and in order that the judgment in rem shall be binding on all the world. Subdivision (5). This incorporates the substance of Admiralty Rule 9. There are remarkably few cases dealing directly with the rule. In The George Prescott United States v. The Zarko It is evident that, though the rule has had a limited career in the reported cases, it is a potentially important one. It is also evident that the rule is framed in terms narrower than the principle that supports it. There is no apparent reason for limiting it to ships and their appurtenances (2 Benedict  299). Also, the reference to third parties in the existing rule seems unfortunate. In The George Prescott, the person who removed and sold the sails was a plaintiff in the action, and relief against him was just as necessary as if he had been a stranger. Another situation in which process of this kind would seem to be useful is that in which the principal property that is the subject of the action is a vessel, but her pending freight is incidentally involved. The warrant of arrest, and notice of its service, should be all that is required by way of original process and notice; ancillary process without notice should suffice as to the incidental intangibles. The distinction between Admiralty Rules 9 and 37 is not at once apparent, but seems to be this: Where the action was against property that could not be seized by the marshal because it is intangible, the original process was required to be similar to that issued against a garnishee, and general notice was required (though not provided for by the present rule; cf. Advisory Committees Note to Rule C(3)). Under Admiralty Rule 9 property had been arrested and general notice had been given, but some of the property had been removed or for some other reason could not be arrested. Here no further notice was necessary. The rule also makes provision for this kind of situation: The proceeding is against a vessels pending freight only; summons has been served on the person supposedly holding the funds, and general notice has been given; it develops that another person holds all or part of the funds. Ancillary process should be available here without further notice. Subdivision (6). Adherence to the practice of return days seems unsatisfactory. The practice varies significantly from district to district. A uniform rule should be provided so that any claimant or defendant can readily determine when he is required to file or serve a claim or answer. A virtue of the return-day practice is that it requires claimants to come forward and identify themselves at an early stage of the proceedingsbefore they could fairly be required to answer. The draft is designed to preserve this feature of the present practice by requiring early filing of the claim. The time schedule contemplated in the draft is closely comparable to the present practice in the Southern District of New York, where the claimant has a minimum of 8 days to claim and three weeks thereafter to answer. This rule also incorporates the substance of Admiralty Rule 25. The present rules emphasis on the true and bona fide owner is omitted, since anyone having the right to possession can claim (2 Benedict  324). Notes of Advisory Committee on Rules1985 Amendment Rule C(3) has been amended to provide for judicial scrutiny before the issuance of any warrant of arrest. Its purpose is to eliminate any doubt as to the rules constitutionality under the Sniadach Sniadach v. Family Finance Corp Fuentes v. Shevin Mitchell v. W. T. Grant Co North Georgia Finishing, Inc. v. Di-Chem, Inc Amstar Corp. v. S/S Alexandros T Merchants National Bank of Mobile v. The Dredge General G. L. Gillespie cert. dismissed Merchants National Bank Alyeska Pipeline Service Co. v. The Vessel Bay Ridge appeal dismissed The rule envisions that the order will issue upon a prima facie showing that the plaintiff has an action in rem against the defendant in the amount sued for and that the property is within the district. A simple order with conclusory findings is contemplated. The reference to review by the court is broad enough to embrace a magistrate as well as a district judge. The new provision recognizes that in some situations, such as when a judge is unavailable and the vessel is about to depart from the jurisdiction, it will be impracticable, if not impossible, to secure the judicial review contemplated by Rule C(3). When exigent circumstances exist, the rule enables the plaintiff to secure the issuance of the summons and warrant of arrest, subject to a later showing that the necessary circumstances actually existed. This provision is intended to provide a safety valve without undermining the requirement of pre-arrest scrutiny. Thus, every effort to secure judicial review, including conducting a hearing by telephone, should be pursued before invoking the exigent-circumstances procedure. The foregoing requirements for prior court review or proof of exigent circumstances do not apply to actions by the United States for forfeitures for federal statutory violations. In such actions a prompt hearing is not constitutionally required, United States v. Eight Thousand Eight Hundred and Fifty Dollars Calero-Toledo v. Pearson Yacht Leasing Co Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment These amendments are designed to conform the rule to Fed.R.Civ.P. 4, as amended. As with recent amendments to Rule 4, it is intended to relieve the Marshals Service of the burden of using its limited personnel and facilities for execution of process in routine circumstances. Doing so may involve a contractual arrangement with a person or organization retained by the government to perform these services, or the use of other government officers and employees, or the special appointment by the court of persons available to perform suitably. The seizure of a vessel, with or without cargo, remains a task assigned to the Marshal. Successful arrest of a vessel frequently requires the enforcement presence of an armed government official and the cooperation of the United States Coast Guard and other governmental authorities. If the marshal is called upon to seize the vessel, it is expected that the same officer will also be responsible for the seizure of any property on board the vessel at the time of seizure that is to be the object of arrest or attachment. Committee Notes on Rules2000 Amendment Style changes have been made throughout the revised portions of Rule C. Several changes of meaning have been made as well. Subdivision 2 Subdivision (2) has been separated into lettered paragraphs to facilitate understanding. Subdivision (3) Paragraph (b)(i) is amended to make it clear that any supplemental process addressed to a vessel or tangible property on board a vessel, as well as the original warrant, is to be served by the marshal. Subdivision (4) A new provision is added, allowing termination of publication if the property is released more than 10 days after execution but before publication is completed. Termination will save money, and also will reduce the risk of confusion as to the status of the property. Subdivision (6) Both paragraphs (a) and (b) require a statement of interest or right rather than the claim formerly required. The new wording permits parallel drafting, and facilitates cross-references in other rules. The substantive nature of the statement remains the same as the former claim. The requirements of (a) and (b) are, however, different in some respects. In a forfeiture proceeding governed by paragraph (a), a statement must be filed by a person who asserts an interest in or a right against the property involved. This category includes every right against the property, such as a lien, whether or not it establishes ownership or a right to possession. In determining who has an interest in or a right against property, courts may continue to rely on precedents that have developed the meaning of claims or claimants for the purpose of civil forfeiture proceedings. In an admiralty and maritime proceeding governed by paragraph (b), a statement is filed only by a person claiming a right of possession or ownership. Other claims against the property are advanced by intervention under Civil Rule 24, as it may be supplemented by local admiralty rules. The reference to ownership includes every interest that qualifies as ownership under domestic or foreign law. If an ownership interest is asserted, it makes no difference whether its character is legal, equitable, or something else. Paragraph (a) provides more time than paragraph (b) for filing a statement. Admiralty and maritime in rem proceedings often present special needs for prompt action that do not commonly arise in forfeiture proceedings. Paragraphs (a) and (b) do not limit the right to make a restricted appearance under Rule E(8). Committee Notes on Rules2002 Amendment Rule C(3) is amended to reflect the provisions of 18 U.S.C.  985, enacted by the Civil Asset Forfeiture Reform Act of 2000, 114 Stat. 202 Rule C(6)(a)(i)(A) is amended to adopt the provision enacted by 18 U.S.C.  983(a)(4)(A), shortly before Rule C(6)(a)(i)(A) took effect, that sets the time for filing a verified statement as 30 days rather than 20 days, and that sets the first alternative event for measuring the 30 days as the date of service of the Governments complaint. Rule C(6)(a)(iii) is amended to give notice of the provision enacted by 18 U.S.C.  983(a)(4)(B) that requires that the answer in a forfeiture proceeding be filed within 20 days. Without this notice, unwary litigants might rely on the provision of Rule 5(d) that allows a reasonable time for filing after service. Rule C(6)(b)(iv) is amended to change the requirement that an answer be filed within 20 days to a requirement that it be served within 20 days. Service is the ordinary requirement, as in Rule 12(a). Rule 5(d) requires filing within a reasonable time after service. Changes Made After Publication and Comments Committee Notes on Rules2005 Amendment Rule C(6)(b)(i)(A) is amended to delete the reference to a time 10 days after completed publication under Rule C(4). This change corrects an oversight in the amendments made in 2000. Rule C(4) requires publication of notice only if the property that is the subject of the action is not released within 10 days after execution of process. Execution of process will always be earlier than publication. Changes Made After Publication and Comment Committee Notes on Rules2006 Amendment Rule C is amended to reflect the adoption of Rule G to govern procedure in civil forfeiture actions. Committee Notes on Rules2008 Amendment Supplemental Rule C(6)(a)(i) is amended to correct an inadvertent omission in the 2006 amendment to Rule C. The amendment is technical and stylistic in nature. No substantive change is intended. Committee Notes on Rules2009 Amendment The times set in the former rule at 10 or 20 days have been revised to 14 or 21 days. See the Note to Rule 6. Rule D. Possessory, Petitory, and Partition Actions  In all actions for possession, partition, and to try title maintainable according to the course of the admiralty practice with respect to a vessel, in all actions so maintainable with respect to the possession of cargo or other maritime property, and in all actions by one or more part owners against the others to obtain security for the return of the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the vessel for any voyage on giving security for its safe return, the process shall be by a warrant of arrest of the vessel, cargo, or other property, and by notice in the manner provided by Rule B(2) to the adverse party or parties. (As added Feb. 28, 1966 July 1, 1966  Notes of Advisory Committee on Rules This carries forward the substance of Admiralty Rule 19. Rule 19 provided the remedy of arrest in controversies involving title and possession in general. See The Tilton Madruga v. Superior Court Rule E. Actions in Rem and Quasi in Rem: General Provisions (1)  Applicability Except as otherwise provided, this rule applies to actions in personam with process of maritime attachment and garnishment, actions in rem, and petitory, possessory, and partition actions, supplementing Rules B, C, and D. (2) Complaint; Security. (a)  Complaint (b)  Security for Costs (3) Process. (a) In admiralty and maritime proceedings process in rem or of maritime attachment and garnishment may be served only within the district. (b)  Issuance and Delivery (4) Execution of Process; Marshals Return; Custody of Property; Procedures for Release. (a)  In General (b)  Tangible Property (c)  Intangible Property (d)  Directions With Respect to Property in Custody (e)  Expenses of Seizing and Keeping Property; Deposit (f)  Procedure for Release From Arrest or Attachment 1 1 (5) Release of Property. (a)  Special Bond (b)  General Bond If a special bond or stipulation is given in a particular case, the liability on the general bond or stipulation shall cease as to that case. (c)  Release by Consent or Stipulation; Order of Court or Clerk; Costs (d)  Possessory, Petitory, and Partition Actions (6)  Reduction or Impairment of Security Whenever security is taken the court may, on motion and hearing, for good cause shown, reduce the amount of security given; and if the surety shall be or become insufficient, new or additional sureties may be required on motion and hearing. (7) Security on Counterclaim. (a) When a person who has given security for damages in the original action asserts a counterclaim that arises from the transaction or occurrence that is the subject of the original action, a plaintiff for whose benefit the security has been given must give security for damages demanded in the counterclaim unless the court, for cause shown, directs otherwise. Proceedings on the original claim must be stayed until this security is given, unless the court directs otherwise. (b) The plaintiff is required to give security under Rule E(7)(a) when the United States or its corporate instrumentality counterclaims and would have been required to give security to respond in damages if a private party but is relieved by law from giving security. (8)  Restricted Appearance An appearance to defend against an admiralty and maritime claim with respect to which there has issued process in rem, or process of attachment and garnishment, may be expressly restricted to the defense of such claim, and in that event is not an appearance for the purposes of any other claim with respect to which such process is not available or has not been served. (9) Disposition of Property; Sales. (a)  Interlocutory Sales; Delivery. (i) On application of a party, the marshal, or other person having custody of the property, the court may order all or part of the property soldwith the sales proceeds, or as much of them as will satisfy the judgment, paid into court to await further orders of the courtif: (A) the attached or arrested property is perishable, or liable to deterioration, decay, or injury by being detained in custody pending the action; (B) the expense of keeping the property is excessive or disproportionate; or (C) there is an unreasonable delay in securing release of the property. (ii) In the circumstances described in Rule E(9)(a)(i), the court, on motion by a defendant or a person filing a statement of interest or right under Rule C(6), may order that the property, rather than being sold, be delivered to the movant upon giving security under these rules. (b)  Sales, Proceeds (10)  Preservation of Property When the owner or another person remains in possession of property attached or arrested under the provisions of Rule E(4)(b) that permit execution of process without taking actual possession, the court, on a partys motion or on its own, may enter any order necessary to preserve the property and to prevent its removal. (As added Feb. 28, 1966 July 1, 1966 Apr. 29, 1985 Aug. 1, 1985 Mar. 2, 1987 Aug. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 17, 2000 Dec. 1, 2000 Apr. 12, 2006 Dec. 1, 2006  Notes of Advisory Committee on Rules Subdivisions (1), (2). Adapted from Admiralty Rule 24. The rule is based on the assumption that there is no more need for security for costs in maritime personal actions than in civil cases generally, but that there is reason to retain the requirement for actions in which property is seized. As to proceedings for limitation of liability see Rule F(1). Subdivision (3). The Advisory Committee has concluded for practical reasons that process requiring seizure of property should continue to be served only within the geographical limits of the district. Compare Rule B(1), continuing the condition that process of attachment and garnishment may be served only if the defendant is not found within the district. The provisions of Admiralty Rule 1 concerning the persons by whom process is to be served will be superseded by FRCP 4(c). Subdivision (4). This rule is intended to preserve the provisions of Admiralty Rules 10 and 36 relating to execution of process, custody of property, seized by the marshal, and the marshals return. It is also designed to make express provision for matters not heretofore covered. The provision relating to clearance in subdivision (b) is suggested by Admiralty Rule 44 of the District of Maryland. Subdivision (d) is suggested by English Rule 12, Order 75. 28 U.S.C.  1921 as amended in 1962 contains detailed provisions relating to the expenses of seizing and preserving property attached or arrested. Subdivision (5). In addition to Admiralty Rule 11 (see Rule E(9), the release of property seized on process of attachment or in rem was dealt with by Admiralty Rules 5, 6, 12, and 57, and 28 U.S.C.,  2464 (formerly Rev. Stat.  941). The rule consolidates these provisions and makes them uniformly applicable to attachment and garnishment and actions in rem. The rule restates the substance of Admiralty Rule 5. Admiralty Rule 12 dealt only with ships arrested on in rem process. Since the same ground appears to be covered more generally by 28 U.S.C.,  2464, the subject matter of Rule 12 is omitted. The substance of Admiralty Rule 57 is retained. 28 U.S.C.,  2464 is incorporated with changes of terminology, and with a substantial change as to the amount of the bond. See 2 Benedict 395 n. 1a; The Lotosland Subdivision (6). Adapted from Admiralty Rule 8. Subdivision (7). Derived from Admiralty Rule 50. Title 46, U.S.C.,  783 extends the principle of Rule 50 to the Government when sued under the Public Vessels Act, presumably on the theory that the credit of the Government is the equivalent of the best security. The rule adopts this principle and extends it to all cases in which the Government is defendant although the Suits in Admiralty Act contains no parallel provisions. Subdivision (8). Under the liberal joinder provisions of unified rules the plaintiff will be enabled to join with maritime actions in rem, or maritime actions in personam with process of attachment and garnishment, claims with respect to which such process is not available, including nonmaritime claims. Unification should not, however, have the result that, in order to defend against an admiralty and maritime claim with respect to which process in rem or quasi in rem has been served, the claimant or defendant must subject himself personally to the jurisdiction of the court with reference to other claims with respect to which such process is not available or has not been served, especially when such other claims are nonmaritime. So far as attachment and garnishment are concerned this principle holds true whether process is issued according to admiralty tradition and the Supplemental Rules or according to Rule 4(e) as incorporated by Rule B(1). A similar problem may arise with respect to civil actions other than admiralty and maritime claims within the meaning of Rule 9(h). That is to say, in an ordinary civil action, whether maritime or not, there may be joined in one action claims with respect to which process of attachment and garnishment is available under state law and Rule 4(e) and claims with respect to which such process is not available or has not been served. The general Rules of Civil Procedure do not specify whether an appearance in such cases to defend the claim with respect to which process of attachment and garnishment has issued is an appearance for the purposes of the other claims. In that context the question has been considered best left to case-by-case development. Where admiralty and maritime claims within the meaning of Rule 9(h) are concerned, however, it seems important to include a specific provision to avoid an unfortunate and unintended effect of unification. No inferences whatever as to the effect of such an appearance in an ordinary civil action should be drawn from the specific provision here and the absence of such a provision in the general Rules. Subdivision (9). Adapted from Admiralty Rules 11, 12, and 40. Subdivision (a) is necessary because of various provisions as to disposition of property in forfeiture proceedings. In addition to particular statutes, note the provisions of 28 U.S.C.,  246165. The provision of Admiralty Rule 12 relating to unreasonable delay was limited to ships but should have broader application. See 2 Benedict 404. Similarly, both Rules 11 and 12 were limited to actions in rem, but should equally apply to attached property. Notes of Advisory Committee on Rules1985 Amendment Rule E(4)(f) makes available the type of prompt post-seizure hearing in proceedings under Supplemental Rules B and C that the Supreme Court has called for in a number of cases arising in other contexts. See North Georgia Finishing, Inc. v. Di-Chem, Inc Mitchell v. W. T. Grant Co The new Rule E(4)(f) is based on a proposal by the Maritime Law Association of the United States and on local admiralty rules in the Eastern, Northern, and Southern Districts of New York. E.D.N.Y. Local Rule 13; N.D.N.Y. Local Rule 13; S.D.N.Y. Local Rule 12. Similar provisions have been adopted by other maritime districts. E.g., N.D. Calif. Local Rule 603.4; W.D. La. Local Admiralty Rule 21. Rule E(4)(f) will provide uniformity in practice and reduce constitutional uncertainties. Rule E(4)(f) is triggered by the defendant or any other person with an interest in the property seized. Upon an oral or written application similar to that used in seeking a temporary restraining order, see Rule 65(b), the court is required to hold a hearing as promptly as possible to determine whether to allow the arrest or attachment to stand. The plaintiff has the burden of showing why the seizure should not be vacated. The hearing also may determine the amount of security to be granted or the propriety of imposing counter-security to protect the defendant from an improper seizure. The foregoing requirements for prior court review or proof of exigent circumstances do not apply to actions by the United States for forfeitures for federal statutory violations. In such actions a prompt hearing is not constitutionally required, United States v. Eight Thousand Eight Hundred and Fifty Dollars Calero-Toledo v. Pearson Yacht Leasing Co Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment These amendments are designed to conform this rule to Fed.R.Civ.P. 4, as amended. They are intended to relieve the Marshals Service of the burden of using its limited personnel and facilities for execution of process in routine circumstances. Doing so may involve a contractual arrangement with a person or organization retained by the government to perform these services, or the use of other government officers and employees, or the special appointment by the court of persons available to perform suitably. Committee Notes on Rules2000 Amendment Style changes have been made throughout the revised portions of Rule E. Several changes of meaning have been made as well. Subdivision (3) Subdivision (7) Subdivision (8) Subdivision (9) Subdivision (10) Committee Notes on Rules2006 Amendment Rule E is amended to reflect the adoption of Rule G to govern procedure in civil forfeiture actions.  References in Text Sections 603 and 604 of Title 46, referred to in subd. (4)(f), were repealed by Pub. L. 9889,  4(b) Aug. 26, 1983 97 Stat. 600 Rule F. Limitation of Liability (1)  Time for Filing Complaint; Security Not later than six months after receipt of a claim in writing, any vessel owner may file a complaint in the appropriate district court, as provided in subdivision (9) of this rule, for limitation of liability pursuant to statute. The owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of the owners interest in the vessel and pending freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended; or (b) at the owners option shall transfer to a trustee to be appointed by the court, for the benefit of claimants, the owners interest in the vessel and pending freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended. The plaintiff shall also give security for costs and, if the plaintiff elects to give security, for interest at the rate of 6 percent per annum from the date of the security. (2)  Complaint The complaint shall set forth the facts on the basis of which the right to limit liability is asserted and all facts necessary to enable the court to determine the amount to which the owners liability shall be limited. The complaint may demand exoneration from as well as limitation of liability. It shall state the voyage if any, on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including all unsatisfied liens or claims of lien, in contract or in tort or otherwise, arising on that voyage, so far as known to the plaintiff, and what actions and proceedings, if any, are pending thereon; whether the vessel was damaged, lost, or abandoned, and, if so, when and where; the value of the vessel at the close of the voyage or, in case of wreck, the value of her wreckage, strippings, or proceeds, if any, and where and in whose possession they are; and the amount of any pending freight recovered or recoverable. If the plaintiff elects to transfer the plaintiffs interest in the vessel to a trustee, the complaint must further show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; and whether the vessel sustained any injury upon or by reason of such subsequent voyage or trip. (3)  Claims Against Owner; Injunction Upon compliance by the owner with the requirements of subdivision (1) of this rule all claims and proceedings against the owner or the owners property with respect to the matter in question shall cease. On application of the plaintiff the court shall enjoin the further prosecution of any action or proceeding against the plaintiff or the plaintiffs property with respect to any claim subject to limitation in the action. (4)  Notice to Claimants Upon the owners compliance with subdivision (1) of this rule the court shall issue a notice to all persons asserting claims with respect to which the complaint seeks limitation, admonishing them to file their respective claims with the clerk of the court and to serve on the attorneys for the plaintiff a copy thereof on or before a date to be named in the notice. The date so fixed shall not be less than 30 days after issuance of the notice. For cause shown, the court may enlarge the time within which claims may be filed. The notice shall be published in such newspaper or newspapers as the court may direct once a week for four successive weeks prior to the date fixed for the filing of claims. The plaintiff not later than the day of second publication shall also mail a copy of the notice to every person known to have made any claim against the vessel or the plaintiff arising out of the voyage or trip on which the claims sought to be limited arose. In cases involving death a copy of such notice shall be mailed to the decedent at the decedents last known address, and also to any person who shall be known to have made any claim on account of such death. (5)  Claims and Answer Claims shall be filed and served on or before the date specified in the notice provided for in subdivision (4) of this rule. Each claim shall specify the facts upon which the claimant relies in support of the claim, the items thereof, and the dates on which the same accrued. If a claimant desires to contest either the right to exoneration from or the right to limitation of liability the claimant shall file and serve an answer to the complaint unless the claim has included an answer. (6)  Information To Be Given Claimants Within 30 days after the date specified in the notice for filing claims, or within such time as the court thereafter may allow, the plaintiff shall mail to the attorney for each claimant (or if the claimant has no attorney to the claimant) a list setting forth (a) the name of each claimant, (b) the name and address of the claimants attorney (if the claimant is known to have one), (c) the nature of the claim, i.e., whether property loss, property damage, death, personal injury etc., and (d) the amount thereof. (7)  Insufficiency of Fund or Security Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiffs interest in the vessel and pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiffs interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant may demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the statutes relating to claims in respect of loss of life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced. (8)  Objections to Claims: Distribution of Fund Any interested party may question or controvert any claim without filing an objection thereto. Upon determination of liability the fund deposited or secured, or the proceeds of the vessel and pending freight, shall be divided pro rata, subject to all relevant provisions of law, among the several claimants in proportion to the amounts of their respective claims, duly proved, saving, however, to all parties any priority to which they may be legally entitled. (9)  Venue; Transfer The complaint shall be filed in any district in which the vessel has been attached or arrested to answer for any claim with respect to which the plaintiff seeks to limit liability; or, if the vessel has not been attached or arrested, then in any district in which the owner has been sued with respect to any such claim. When the vessel has not been attached or arrested to answer the matters aforesaid, and suit has not been commenced against the owner, the proceedings may be had in the district in which the vessel may be, but if the vessel is not within any district and no suit has been commenced in any district, then the complaint may be filed in any district. For the convenience of parties and witnesses, in the interest of justice, the court may transfer the action to any district; if venue is wrongly laid the court shall dismiss or, if it be in the interest of justice, transfer the action to any district in which it could have been brought. If the vessel shall have been sold, the proceeds shall represent the vessel for the purposes of these rules. (As added Feb. 28, 1966 July 1, 1966 Mar. 2, 1987 Aug. 1, 1987  Notes of Advisory Committee on Rules Subdivision (1). The amendments of 1936 to the Limitation Act superseded to some extent the provisions of Admiralty Rule 51, especially with respect to the time of filing the complaint and with respect to security. The rule here incorporates in substance the 1936 amendment of the Act (46 U.S.C.,  185) with a slight modification to make it clear that the complaint may be filed at any time not later than six months after a claim has been lodged with the owner. Subdivision (2). Derived from Admiralty Rules 51 and 53. Subdivision (3). This is derived from the last sentence of 36 [46] U.S.C.  185 and the last paragraph of Admiralty Rule 51. Subdivision (4). Derived from Admiralty Rule 51. Subdivision (5). Derived from Admiralty Rules 52 and 53. Subdivision (6). Derived from Admiralty Rule 52. Subdivision (7). Derived from Admiralty Rules 52 and 36 [46] U.S.C.,  185. Subdivision (8). Derived from Admiralty Rule 52. Subdivision (9). Derived from Admiralty Rule 54. The provision for transfer is revised to conform closely to the language of 28 U.S.C.  1404(a) and 1406(a), though it retains the existing rules provision for transfer to any district for convenience. The revision also makes clear what has been doubted: that the court may transfer if venue is wrongly laid. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Rule G. Forfeiture Actions in Rem (1)  Scope This rule governs a forfeiture action in rem arising from a federal statute. To the extent that this rule does not address an issue, Supplemental Rules C and E and the Federal Rules of Civil Procedure also apply. (2)  Complaint The complaint must: (a) be verified; (b) state the grounds for subject-matter jurisdiction, in rem jurisdiction over the defendant property, and venue; (c) describe the property with reasonable particularity; (d) if the property is tangible, state its location when any seizure occurred andif differentits location when the action is filed; (e) identify the statute under which the forfeiture action is brought; and (f) state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial. (3) Judicial Authorization and Process. (a)  Real Property (b)  Other Property; Arrest Warrant (i) the clerk must issue a warrant to arrest the property if it is in the governments possession, custody, or control; (ii) the courton finding probable causemust issue a warrant to arrest the property if it is not in the governments possession, custody, or control and is not subject to a judicial restraining order; and (iii) a warrant is not necessary if the property is subject to a judicial restraining order. (c)  Execution of Process. (i) The warrant and any supplemental process must be delivered to a person or organization authorized to execute it, who may be: (A) a marshal or any other United States officer or employee; (B) someone under contract with the United States; or (C) someone specially appointed by the court for that purpose. (ii) The authorized person or organization must execute the warrant and any supplemental process on property in the United States as soon as practicable unless: (A) the property is in the governments possession, custody, or control; or (B) the court orders a different time when the complaint is under seal, the action is stayed before the warrant and supplemental process are executed, or the court finds other good cause. (iii) The warrant and any supplemental process may be executed within the district or, when authorized by statute, outside the district. (iv) If executing a warrant on property outside the United States is required, the warrant may be transmitted to an appropriate authority for serving process where the property is located. (4) Notice. (a)  Notice by Publication. (i)  When Publication Is Required (A) the defendant property is worth less than $1,000 and direct notice is sent under Rule G(4)(b) to every person the government can reasonably identify as a potential claimant; or (B) the court finds that the cost of publication exceeds the propertys value and that other means of notice would satisfy due process. (ii)  Content of the Notice (A) describe the property with reasonable particularity; (B) state the times under Rule G(5) to file a claim and to answer; and (C) name the government attorney to be served with the claim and answer. (iii)  Frequency of Publication (A) once a week for three consecutive weeks; or (B) only once if, before the action was filed, notice of nonjudicial forfeiture of the same property was published on an official internet government forfeiture site for at least 30 consecutive days, or in a newspaper of general circulation for three consecutive weeks in a district where publication is authorized under Rule G(4)(a)(iv). (iv)  Means of Publication (A) if the property is in the United States, publication in a newspaper generally circulated in the district where the action is filed, where the property was seized, or where property that was not seized is located; (B) if the property is outside the United States, publication in a newspaper generally circulated in a district where the action is filed, in a newspaper generally circulated in the country where the property is located, or in legal notices published and generally circulated in the country where the property is located; or (C) instead of (A) or (B), posting a notice on an official internet government forfeiture site for at least 30 consecutive days. (b)  Notice to Known Potential Claimants. (i)  Direct Notice Required (ii)  Content of the Notice (A) the date when the notice is sent; (B) a deadline for filing a claim, at least 35 days after the notice is sent; (C) that an answer or a motion under Rule 12 must be filed no later than 21 days after filing the claim; and (D) the name of the government attorney to be served with the claim and answer. (iii)  Sending Notice. (A) The notice must be sent by means reasonably calculated to reach the potential claimant. (B) Notice may be sent to the potential claimant or to the attorney representing the potential claimant with respect to the seizure of the property or in a related investigation, administrative forfeiture proceeding, or criminal case. (C) Notice sent to a potential claimant who is incarcerated must be sent to the place of incarceration. (D) Notice to a person arrested in connection with an offense giving rise to the forfeiture who is not incarcerated when notice is sent may be sent to the address that person last gave to the agency that arrested or released the person. (E) Notice to a person from whom the property was seized who is not incarcerated when notice is sent may be sent to the last address that person gave to the agency that seized the property. (iv)  When Notice Is Sent (v)  Actual Notice (5) Responsive Pleadings. (a)  Filing a Claim. (i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must: (A) identify the specific property claimed; (B) identify the claimant and state the claimants interest in the property; (C) be signed by the claimant under penalty of perjury; and (D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D). (ii) Unless the court for good cause sets a different time, the claim must be filed: (A) by the time stated in a direct notice sent under Rule G(4)(b); (B) if notice was published but direct notice was not sent to the claimant or the claimants attorney, no later than 30 days after final publication of newspaper notice or legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an official internet government forfeiture site; or (C) if notice was not published and direct notice was not sent to the claimant or the claimants attorney: (1) if the property was in the governments possession, custody, or control when the complaint was filed, no later than 60 days after the filing, not counting any time when the complaint was under seal or when the action was stayed before execution of a warrant issued under Rule G(3)(b); or (2) if the property was not in the governments possession, custody, or control when the complaint was filed, no later than 60 days after the government complied with 18 U.S.C.  985(c) as to real property, or 60 days after process was executed on the property under Rule G(3). (iii) A claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the bailors behalf must state the authority to do so. (b)  Answer (6) Special Interrogatories. (a)  Time and Scope (b)  Answers or Objections (c)  Governments Response Deferred (7) Preserving, Preventing Criminal Use, and Disposing of Property; Sales. (a)  Preserving and Preventing Criminal Use of Property (b)  Interlocutory Sale or Delivery. (i)  Order to Sell (A) the property is perishable or at risk of deterioration, decay, or injury by being detained in custody pending the action; (B) the expense of keeping the property is excessive or is disproportionate to its fair market value; (C) the property is subject to a mortgage or to taxes on which the owner is in default; or (D) the court finds other good cause. (ii)  Who Makes the Sale (iii)  Sale Procedures (iv)  Sale Proceeds (v)  Delivery on a Claimants Motion (c)  Disposing of Forfeited Property (8) Motions. (a)  Motion To Suppress Use of the Property as Evidence (b)  Motion To Dismiss the Action. (i) A claimant who establishes standing to contest forfeiture may move to dismiss the action under Rule 12(b). (ii) In an action governed by 18 U.S.C.  983(a)(3)(D) the complaint may not be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property. The sufficiency of the complaint is governed by Rule G(2). (c)  Motion To Strike a Claim or Answer. (i) At any time before trial, the government may move to strike a claim or answer: (A) for failing to comply with Rule G(5) or (6), or (B) because the claimant lacks standing. (ii) The motion: (A) must be decided before any motion by the claimant to dismiss the action; and (B) may be presented as a motion for judgment on the pleadings or as a motion to determine after a hearing or by summary judgment whether the claimant can carry the burden of establishing standing by a preponderance of the evidence. (d)  Petition To Release Property. (i) If a United States agency or an agencys contractor holds property for judicial or nonjudicial forfeiture under a statute governed by 18 U.S.C.  983(f), a person who has filed a claim to the property may petition for its release under  983(f). (ii) If a petition for release is filed before a judicial forfeiture action is filed against the property, the petition may be filed either in the district where the property was seized or in the district where a warrant to seize the property issued. If a judicial forfeiture action against the property is later filed in another districtor if the government shows that the action will be filed in another districtthe petition may be transferred to that district under 28 U.S.C.  1404. (e)  Excessive Fines (i) the claimant has pleaded the defense under Rule 8; and (ii) the parties have had the opportunity to conduct civil discovery on the defense. (9)  Trial Trial is to the court unless any party demands trial by jury under Rule 38. (As added Apr. 12, 2006 Dec. 1, 2006 Mar. 26, 2009 Dec. 1, 2009  Committee Notes on Rules2006 Rule G is added to bring together the central procedures that govern civil forfeiture actions. Civil forfeiture actions are in rem proceedings, as are many admiralty proceedings. As the number of civil forfeiture actions has increased, however, reasons have appeared to create sharper distinctions within the framework of the Supplemental Rules. Civil forfeiture practice will benefit from distinctive provisions that express and focus developments in statutory, constitutional, and decisional law. Admiralty practice will be freed from the pressures that arise when the needs of civil forfeiture proceedings counsel interpretations of common rules that may not be suitable for admiralty proceedings. Rule G generally applies to actions governed by the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) and also to actions excluded from it. The rule refers to some specific CAFRA provisions; if these statutes are amended, the rule should be adapted to the new provisions during the period required to amend the rule. Rule G is not completely self-contained. Subdivision (1) recognizes the need to rely at times on other Supplemental Rules and the place of the Supplemental Rules within the basic framework of the Civil Rules. Supplemental Rules A, C, and E are amended to reflect the adoption of Rule G. Subdivision (1) Rule G is designed to include the distinctive procedures that govern a civil forfeiture action. Some details, however, are better supplied by relying on Rules C and E. Subdivision (1) incorporates those rules for issues not addressed by Rule G. This general incorporation is at times made explicitsubdivision (7)(b)(v), for example, invokes the security provisions of Rule E. But Rules C and E are not to be invoked to create conflicts with Rule G. They are to be used only when Rule G, fairly construed, does not address the issue. The Civil Rules continue to provide the procedural framework within which Rule G and the other Supplemental Rules operate. Both Rule G(1) and Rule A state this basic proposition. Rule G, for example, does not address pleadings amendments. Civil Rule 15 applies, in light of the circumstances of a forfeiture action. Subdivision (2) Rule E(2)(a) requires that the complaint in an admiralty action state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading. Application of this standard to civil forfeiture actions has evolved to the standard stated in subdivision (2)(f). The complaint must state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial. See U.S. v. Mondragon Subdivision (3) Subdivision (3) governs in rem process in a civil forfeiture action. Paragraph (a) Paragraph (b) Paragraph (c) Subdivision (4) Paragraph (a) Subparagraph (i) recognizes two exceptions to the general publication requirement. Publication is not required if the defendant property is worth less than $1,000 and direct notice is sent to all reasonably identifiable potential claimants as required by subdivision (4)(b). Publication also is not required if the cost would exceed the propertys value and the court finds that other means of notice would satisfy due process. Publication on a government-established internet forfeiture site, as contemplated by subparagraph (iv), would be at a low marginal publication cost, which would likely be the cost to compare to the property value. Subparagraph (iv) states the basic criterion for selecting the means and method of publication. The purpose is to adopt a means reasonably calculated to reach potential claimants. The government should choose from among these means a method that is reasonably likely to reach potential claimants at a cost reasonable in the circumstances. If the property is in the United States and newspaper notice is chosen, publication may be where the action is filed, where the property was seized, orif the property was not seizedwhere the property is located. Choice among these places is influenced by the probable location of potential claimants. If the property is not in the United States, account must be taken of the sensitivities that surround publication of legal notices in other countries. A foreign country may forbid local publication. If potential claimants are likely to be in the United States, publication in the district where the action is filed may be the best choice. If potential claimants are likely to be located abroad, the better choice may be publication by means generally circulated in the country where the property is located. Newspaper publication is not a particularly effective means of notice for most potential claimants. Its traditional use is best defended by want of affordable alternatives. Paragraph (iv)(C) contemplates a government-created internet forfeiture site that would provide a single easily identified means of notice. Such a site could allow much more direct access to notice as to any specific property than publication provides. Paragraph (b) Subparagraph (i) states the obligation to send notice. Many potential claimants will be known to the government because they have filed claims during the administrative forfeiture stage. Notice must be sent, however, no matter what source of information makes it reasonably appear that a person is a potential claimant. The duty to send notice terminates when the time for filing a claim expires. Notice of the action does not require formal service of summons in the manner required by Rule 4 to initiate a personal action. The process that begins an in rem forfeiture action is addressed by subdivision (3). This process commonly gives notice to potential claimants. Publication of notice is required in addition to this process. Due process requirements have moved beyond these traditional means of notice, but are satisfied by practical means that are reasonably calculated to accomplish actual notice. Subparagraph (ii)(B) directs that the notice state a deadline for filing a claim that is at least 35 days after the notice is sent. This provision applies both in actions that fall within 18 U.S.C.  983(a)(4)(A) and in other actions. Section 983(a)(4)(A) states that a claim should be filed no later than 30 days after service of the complaint. The variation introduced by subparagraph (ii)(B) reflects the procedure of  983(a)(2)(B) for nonjudicial forfeiture proceedings. The nonjudicial procedure requires that a claim be filed not later than the deadline set forth in a personal notice letter (which may be not earlier than 35 days after the date the letter is sent) * * *. This procedure is as suitable in a civil forfeiture action as in a nonjudicial forfeiture proceeding. Thirty-five days after notice is sent ordinarily will extend the claim time by no more than a brief period; a claimant anxious to expedite proceedings can file the claim before the deadline; and the government has flexibility to set a still longer period when circumstances make that desirable. Subparagraph (iii) begins by stating the basic requirement that notice must be sent by means reasonably calculated to reach the potential claimant. No attempt is made to list the various means that may be reasonable in different circumstances. It may be reasonable, for example, to rely on means that have already been established for communication with a particular potential claimant. The governments interest in choosing a means likely to accomplish actual notice is bolstered by its desire to avoid post-forfeiture challenges based on arguments that a different method would have been more likely to accomplish actual notice. Flexible rule language accommodates the rapid evolution of communications technology. Notice may be directed to a potential claimant through counsel, but only to counsel already representing the claimant with respect to the seizure of the property, or in a related investigation, administrative forfeiture proceeding, or criminal case. Subparagraph (iii)(C) reflects the basic proposition that notice to a potential claimant who is incarcerated must be sent to the place of incarceration. Notice directed to some other place, such as a pre-incarceration residence, is less likely to reach the potential claimant. This provision does not address due process questions that may arise if a particular prison has deficient procedures for delivering notice to prisoners. See Dusenbery v. U.S. Items (D) and (E) of subparagraph (iii) authorize the government to rely on an address given by a person who is not incarcerated. The address may have been given to the agency that arrested or released the person, or to the agency that seized the property. The government is not obliged to undertake an independent investigation to verify the address. Subparagraph (iv) identifies the date on which notice is considered to be sent for some common means, without addressing the circumstances for choosing among the identified means or other means. The date of sending should be determined by analogy for means not listed. Facsimile transmission, for example, is sent upon transmission. Notice by personal delivery is sent on delivery. Subparagraph (v), finally, reflects the purpose to effect actual notice by providing that a potential claimant who had actual notice of a forfeiture proceeding cannot oppose or seek relief from forfeiture because the government failed to comply with subdivision (4)(b). Subdivision (5) Paragraph (a) If the claimant states its interest in the property to be as bailee, the bailor must be identified. A bailee who files a claim on behalf of a bailor must state the bailees authority to do so. The claim must be signed under penalty of perjury by the person making it. An artificial body that can act only through an agent may authorize an agent to sign for it. Excusable inability of counsel to obtain an appropriate signature may be grounds for an extension of time to file the claim. Paragraph (a)(ii) sets the time for filing a claim. Item (C) applies in the relatively rare circumstance in which notice is not published and the government did not send direct notice to the claimant because it did not know of the claimant or did not have an address for the claimant. Paragraph (b) see U.S. v. $8,221,877.16 Failure to present an objection to in rem jurisdiction or to venue by timely motion or answer waives the objection. Waiver of such objections is familiar. An answer may be amended to assert an objection initially omitted. But Civil Rule 15 should be applied to an amendment that for the first time raises an objection to in rem jurisdiction by analogy to the personal jurisdiction objection provision in Civil Rule 12(h)(1)(B). The amendment should be permitted only if it is permitted as a matter of course under Rule 15(a). A claimants motion to dismiss the action is further governed by subdivisions (6)(c), (8)(b), and (8)(c). Subdivision (6) Subdivision (6) illustrates the adaptation of an admiralty procedure to the different needs of civil forfeiture. Rule C(6) permits interrogatories to be served with the complaint in an in rem action without limiting the subjects of inquiry. Civil forfeiture practice does not require such an extensive departure from ordinary civil practice. It remains useful, however, to permit the government to file limited interrogatories at any time after a claim is filed to gather information that bears on the claimants standing. Subdivisions (8)(b) and (c) allow a claimant to move to dismiss only if the claimant has standing, and recognize the governments right to move to dismiss a claim for lack of standing. Subdivision (6) interrogatories are integrated with these provisions in that the interrogatories are limited to the claimants identity and relationship to the defendant property. If the claimant asserts a relationship to the property as bailee, the interrogatories can inquire into the bailors interest in the property and the bailees relationship to the bailor. The claimant can accelerate the time to serve subdivision (6) interrogatories by serving a motion to dismissthe interrogatories must be served within 20 days after the motion is served. Integration is further accomplished by deferring the governments obligation to respond to a motion to dismiss until 20 days after the claimant moving to dismiss has answered the interrogatories. Special interrogatories served under Rule G(6) do not count against the presumptive 25-interrogatory limit established by Rule 33(a). Rule 33 procedure otherwise applies to these interrogatories. Subdivision (6) supersedes the discovery moratorium of Rule 26(d) and the broader interrogatories permitted for admiralty proceedings by Rule C(6). Subdivision (7) Paragraph (a) Paragraph (b) Paragraph (b)(i)(D) establishes authority to order sale for good cause. Good cause may be shown when the property is subject to diminution in value. Care should be taken before ordering sale to avoid diminished value. Paragraph (b)(iii) recognizes that if the court approves, the interests of all parties may be served by their agreement to sale, aspects of the sale, or sale procedures that depart from governing statutory procedures. Paragraph (c) draws from Rule E(9)(a), (b), and (c). Disposition of the proceeds as provided by law may require resolution of disputed issues. A mortgagees claim to the property or sale proceeds, for example, may be disputed on the ground that the mortgage is not genuine. An undisputed lien claim, on the other hand, may be recognized by payment after an interlocutory sale. Subdivision (8) Subdivision (8) addresses a number of issues that are unique to civil forfeiture actions. Paragraph (a) Paragraph (b) Paragraph (b)(ii) mirrors 18 U.S.C.  983(a)(3)(D). It applies only to an action independently governed by  983(a)(3)(D), implying nothing as to actions outside  983(a)(3)(D). The adequacy of the complaint is measured against the pleading requirements of subdivision (2), not against the quality of the evidence available to the government when the complaint was filed. Paragraph (c) Paragraph (c)(i)(A) provides that the government may move to strike a claim or answer for failure to comply with the pleading requirements of subdivision (5) or to answer subdivision (6) interrogatories. As with other pleadings, the court should strike a claim or answer only if satisfied that an opportunity should not be afforded to cure the defects under Rule 15. Not every failure to respond to subdivision (6) interrogatories warrants an order striking the claim. But the special role that subdivision (6) plays in the scheme for determining claim standing may justify a somewhat more demanding approach than the general approach to discovery sanctions under Rule 37. Paragraph (c)(ii) directs that a motion to strike a claim or answer be decided before any motion by the claimant to dismiss the action. A claimant who lacks standing is not entitled to challenge the forfeiture on the merits. Paragraph (c)(ii) further identifies three procedures for addressing claim standing. If a claim fails on its face to show facts that support claim standing, the claim can be dismissed by judgment on the pleadings. If the claim shows facts that would support claim standing, those facts can be tested by a motion for summary judgment. If material facts are disputed, precluding a grant of summary judgment, the court may hold an evidentiary hearing. The evidentiary hearing is held by the court without a jury. The claimant has the burden to establish claim standing at a hearing; procedure on a government summary judgment motion reflects this allocation of the burden. Paragraph (d) Paragraph (d)(ii) reflects the venue provisions of 18 U.S.C.  983(f)(3)(A) as a guide to practitioners. In addition, it makes clear the status of a civil forfeiture action as a civil action eligible for transfer under 28 U.S.C.  1404. A transfer decision must be made on the circumstances of the particular proceeding. The district where the forfeiture action is filed has the advantage of bringing all related proceedings together, avoiding the waste that flows from consideration of different parts of the same forfeiture proceeding in the court where the warrant issued or the court where the property was seized. Transfer to that court would serve consolidation, the purpose that underlies nationwide enforcement of a seizure warrant. But there may be offsetting advantages in retaining the petition where it was filed. The claimant may not be able to litigate, effectively or at all, in a distant court. Issues relevant to the petition may be better litigated where the property was seized or where the warrant issued. One element, for example, is whether the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of trial. Another is whether continued government possession would prevent the claimant from working. Determining whether seizure of the claimants automobile prevents work may turn on assessing the realities of local public transit facilities. Paragraph (e) U.S. v. Bajakajian Subdivision (9) Subdivision (9) serves as a reminder of the need to demand jury trial under Rule 38. It does not expand the right to jury trial. See U.S. v. One Parcel of Property Located at 32 Medley Lane Changes Made After Publication and Comment Rule G(7)(a) was amended to recognize the courts authority to enter an order necessary to prevent use of the defendant property in a criminal offense. Rule G(8)(c) was revised to clarify the use of three procedures to challenge a claimants standingjudgment on the pleadings, summary judgment, or an evidentiary hearing. Several other rule text changes were made to add clarity on small points or to conform to Style conventions. Changes were made in the Committee Note to explain some of the rule text revisions, to add clarity on a few points, and to delete statements about complex matters that seemed better left to case-law development. Committee Notes on Rules2009 Amendment The times set in the former rule at 20 days have been revised to 21 days. See the Note to Rule 6. SUPPLEMENTAL RULES FOR SOCIAL SECURITY ACTIONS UNDER 42 U.S.C.  405(g) 1 1 April 11, 2022 Rule 1. Review of Social Security Decisions Under 42 U.S.C.  405(g) (a)  Applicability of These Rules These rules govern an action under 42 U.S.C.  405(g) for review on the record of a final decision of the Commissioner of Social Security that presents only an individual claim. (b)  Federal Rules of Civil Procedure The Federal Rules of Civil Procedure also apply to a proceeding under these rules, except to the extent that they are inconsistent with these rules. (As added Apr. 11, 2022 Dec. 1, 2022  Codification For discussion of establishment and application of procedure under these supplemental rules, see Committee Notes on Rules2022, set out as a note under Rule 8. Rule 2. Complaint (a)  Commencing Action An action for review under these rules is commenced by filing a complaint with the court. (b) Contents. (1) The complaint must: (A) state that the action is brought under  405(g); (B) identify the final decision to be reviewed, including any identifying designation provided by the Commissioner with the final decision; (C) state the name and the county of residence of the person for whom benefits are claimed; (D) name the person on whose wage record benefits are claimed; and (E) state the type of benefits claimed. (2) The complaint may include a short and plain statement of the grounds for relief. (As added Apr. 11, 2022 Dec. 1, 2022  Codification For discussion of establishment and application of procedure under these supplemental rules, see Committee Notes on Rules2022, set out as a note under Rule 8. Rule 3. Service  The court must notify the Commissioner of the commencement of the action by transmitting a Notice of Electronic Filing to the appropriate office within the Social Security Administrations Office of General Counsel and to the United States Attorney for the district where the action is filed. If the complaint was not filed electronically, the court must notify the plaintiff of the transmission. The plaintiff need not serve a summons and complaint under Civil Rule 4. (As added Apr. 11, 2022 Dec. 1, 2022   References in Text Civil Rule 4, referred to in text, probably means Rule 4 of the Federal Rules of Civil Procedure, which is set out in this Appendix. Codification For discussion of establishment and application of procedure under these supplemental rules, see Committee Notes on Rules2022, set out as a note under Rule 8. Rule 4. Answer; Motions; Time (a)  Serving the Answer An answer must be served on the plaintiff within 60 days after notice of the action is given under Rule 3. (b)  The Answer An answer may be limited to a certified copy of the administrative record, and to any affirmative defenses under Civil Rule 8(c). Civil Rule 8(b) does not apply. (c)  Motions Under Civil Rule A motion under Civil Rule 12 must be made within 60 days after notice of the action is given under Rule 3. (d)  Time to Answer After a Motion Under Rule (c) Unless the court sets a different time, serving a motion under Rule 4(c) alters the time to answer as provided by Civil Rule 12(a)(4). (As added Apr. 11, 2022 Dec. 1, 2022   References in Text Civil Rules, referred to in subds. (b) to (d), probably means the Federal Rules of Civil Procedure, which are set out in this Appendix. Codification For discussion of establishment and application of procedure under these supplemental rules, see Committee Notes on Rules2022, set out as a note under Rule 8. Rule 5. Presenting the Action for Decision  The action is presented for decision by the parties briefs. A brief must support assertions of fact by citations to particular parts of the record. (As added Apr. 11, 2022 Dec. 1, 2022  Codification For discussion of establishment and application of procedure under these supplemental rules, see Committee Notes on Rules2022, set out as a note under Rule 8. Rule 6. Plaintiffs Brief  The plaintiff must file and serve on the Commissioner a brief for the requested relief within 30 days after the answer is filed or 30 days after entry of an order disposing of the last remaining motion filed under Rule 4(c), whichever is later. (As added Apr. 11, 2022 Dec. 1, 2022  Codification For discussion of establishment and application of procedure under these supplemental rules, see Committee Notes on Rules2022, set out as a note under Rule 8. Rule 7. Commissioners Brief  The Commissioner must file a brief and serve it on the plaintiff within 30 days after service of the plaintiffs brief. (As added Apr. 11, 2022 Dec. 1, 2022  Codification For discussion of establishment and application of procedure under these supplemental rules, see Committee Notes on Rules2022, set out as a note under Rule 8. Rule 8. Reply Brief  The plaintiff may file a reply brief and serve it on the Commissioner within 14 days after service of the Commissioners brief. (As added Apr. 11, 2022 Dec. 1, 2022  Committee Notes on Rules2022 Actions to review a final decision of the Commissioner of Social Security under 42 U.S.C.  405(g) have been governed by the Civil Rules. These Supplemental Rules, however, establish a simplified procedure that recognizes the essentially appellate character of actions that seek only review of an individuals claims on a single administrative record, including a single claim based on the wage record of one person for an award to be shared by more than one person. These rules apply only to final decisions actually made by the Commissioner of Social Security. They do not apply to actions against another agency under a statute that adopts  405(g) by considering the head of the other agency to be the Commissioner. There is not enough experience with such actions to determine whether they should be brought into the simplified procedures contemplated by these rules. But a court can employ these procedures on its own if they seem useful, apart from the Rule 3 provision for service on the Commissioner. Some actions may plead a claim for review under  405(g) but also join more than one plaintiff, or add a defendant or a claim for relief beyond review on the administrative record. Such actions fall outside these Supplemental Rules and are governed by the Civil Rules alone. The Civil Rules continue to apply to actions for review under  405(g) except to the extent that the Civil Rules are inconsistent with these Supplemental Rules. Supplemental Rules 2, 3, 4, and 5 are the core of the provisions that are inconsistent with, and supersede, the corresponding rules on pleading, service, and presenting the action for decision. These Supplemental Rules establish a uniform procedure for pleading and serving the complaint; for answering and making motions under Rule 12; and for presenting the action for decision by briefs. These procedures reflect the ways in which a civil action under  405(g) resembles an appeal or a petition for review of administrative action filed directly in a court of appeals. Supplemental Rule 2 adopts the procedure of Civil Rule 3, which directs that a civil action be commenced by filing a complaint with the court. In an action that seeks only review on the administrative record, however, the complaint is similar to a notice of appeal. Simplified pleading is often desirable. Jurisdiction is pleaded under Rule 2(b)(1)(A) by identifying the action as one brought under  405(g). The Social Security Administration can ensure that the plaintiff is able to identify the administrative proceeding and record in a way that enables prompt response by providing an identifying designation with the final decision. In current practice, this designation is called the Beneficiary Notice Control Number. The elements of the claim for review are adequately pleaded under Rule 2(b)(1)(B), (C), (D), and (E). Failure to plead all the matters described in Rule 2(b)(1)(B), (C), (D), and (E), moreover, should be cured by leave to amend, not dismissal. Rule 2(b)(2), however, permits a plaintiff to plead more than Rule 2(b)(1) requires. Rule 3 provides a means for giving notice of the action that supersedes Civil Rule 4(i)(2). The Notice of Electronic Filing sent by the court suffices for service, so long as it provides a means of electronic access to the complaint. Notice to the Commissioner is sent to the appropriate office. The plaintiff need not serve a summons and complaint under Civil Rule 4. Rule 4s provisions for the answer build from this part of  405(g): As part of the Commissioners answer the Commissioner of Social Security shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are made. 1 1 The time to answer or to file a motion under Civil Rule 12 is set at 60 days after notice of the action is given under Rule 3. If a timely motion is made under Civil Rule 12, the time to answer is governed by Civil Rule 12(a)(4) unless the court sets a different time. Rule 5 states the procedure for presenting for decision on the merits a  405(g) review action that is governed by the Supplemental Rules. Like an appeal, the briefs present the action for decision on the merits. This procedure displaces summary judgment or such devices as a joint statement of facts as the means of review on the administrative record. Rule 5 also displaces local rules or practices that are inconsistent with the simplified procedure established by these Supplemental Rules for treating the action as one for review on the administrative record. All briefs are similar to appellate briefs, citing to the parts of the administrative record that support an assertion that the final decision is not supported by substantial evidence or is contrary to law. Rules 6, 7, and 8 set the times for serving the briefs: 30 days after the answer is filed or 30 days after entry of an order disposing of the last remaining motion filed under Rule 4(c) for the plaintiffs brief, 30 days after service of the plaintiffs brief for the Commissioners brief, and 14 days after service of the Commissioners brief for a reply brief. The court may revise these times when appropriate. FEDERAL RULES OF EVIDENCE (As amended to December 26, 2023 Effective Date and Application of Rules Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1926 That the following rules shall take effect on the one hundred and eightieth day [ July 1, 1975 Jan. 2, 1975  Historical Note The Federal Rules of Evidence were adopted by order of the Supreme Court on Nov. 20, 1972 Feb. 5, 1973 July 1, 1973 Pub. L. 9312 Mar. 30, 1973 87 Stat. 9 Pub. L. 93595 Jan. 2, 1975 88 Stat. 1926 July 1, 1975 The Rules have been amended Oct. 16, 1975 Pub. L. 94113,  1 89 Stat. 576 Oct. 31, 1975 Dec. 12, 1975 Pub. L. 94149,  1 89 Stat. 805 Oct. 28, 1978 Pub. L. 95540,  2 92 Stat. 2046 Nov. 6, 1978 Pub. L. 95598, title II,  251 92 Stat. 2673 Oct. 1, 1979 Apr. 30, 1979 Dec. 1, 1980 Apr. 2, 1982 Pub. L. 97164, title I,  142 96 Stat. 45 Oct. 1, 1982 Oct. 12, 1984 Pub. L. 98473, title IV,  406 98 Stat. 2067 Mar. 2, 1987 Oct. 1, 1987 Apr. 25, 1988 Nov. 1, 1988 Nov. 18, 1988 Pub. L. 100690, title VII 102 Stat. 4400 Jan. 26, 1990 Dec. 1, 1990 Apr. 30, 1991 Dec. 1, 1991 Apr. 22, 1993 Dec. 1, 1993 Apr. 29, 1994 Dec. 1, 1994 Sept. 13, 1994 Pub. L. 103322, title IV,  40141 108 Stat. 1918 Apr. 11, 1997 Dec. 1, 1997 Apr. 24, 1998 Dec. 1, 1998 Apr. 17, 2000 Dec. 1, 2000 Mar. 27, 2003 Dec. 1, 2003 Apr. 12, 2006 Dec. 1, 2006 Sept. 19, 2008 Pub. L. 110322,  1(a) 122 Stat. 3537 Apr. 28, 2010 Dec. 1, 2010 Apr. 26, 2011 Dec. 1, 2011 Apr. 13, 2013 Dec. 1, 2013 Apr. 25, 2014 Dec. 1, 2014 Apr. 27, 2017 Dec. 1, 2017 Apr. 25, 2019 Dec. 1, 2019 Apr. 27, 2020 Dec. 1, 2020 Apr. 24, 2023 Dec. 1, 2023    ARTICLE I. GENERAL PROVISIONS  Rule  101. Scope; definitions.  102. Purpose.  103. Rulings on evidence.  104. Preliminary questions.  105. Limiting evidence that is not admissible against other parties or for other purposes.  106. Remainder of or related statements.  ARTICLE II. JUDICIAL NOTICE  201. Judicial notice of adjudicative facts.  ARTICLE III. PRESUMPTIONS IN CIVIL CASES  301. Presumptions in civil cases generally.  302. Applying State law to presumptions in civil cases.  ARTICLE IV. RELEVANCE AND ITS LIMITS  401. Test for relevant evidence.  402. General admissibility of relevant evidence.  403. Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons.  404. Character evidence; other crimes, wrongs, or acts.  405. Methods of proving character.  406. Habit; routine practice.  407. Subsequent remedial measures.  408. Compromise offers and negotiations.  409. Offers to pay medical and similar expenses.  410. Pleas, plea discussions, and related statements.  411. Liability insurance.  412. Sex-offense cases: the victims sexual behavior or predisposition.  413. Similar crimes in sexual-assault cases.  414. Similar crimes in child-molestation cases.  415. Similar acts in civil cases involving sexual assault or child molestation.  ARTICLE V. PRIVILEGES  501. Privilege in general.  502. Attorney-client privilege and work product; limitations on waiver.  ARTICLE VI. WITNESSES  601. Competency to testify in general.  602. Need for personal knowledge.  603. Oath or affirmation to testify truthfully.  604. Interpreter.  605. Judges competency as a witness.  606. Jurors competency as a witness.  607. Who may impeach a witness.  608. A witnesss character for truthfulness or untruthfulness.  609. Impeachment by evidence of a criminal conviction.  610. Religious beliefs or opinions.  611. Mode and order of examining witnesses and presenting evidence.  612. Writing used to refresh a witnesss memory.  613. Witnesss prior statement.  614. Courts calling or examining a witness.  615. Excluding witnesses from the courtroom; preventing an excluded witnesss access to trial testimony.  ARTICLE VII. OPINIONS AND EXPERT TESTIMONY  701. Opinion testimony by lay witnesses.  702. Testimony by expert witnesses.  703. Bases of an experts opinion testimony.  704. Opinion on an ultimate issue.  705. Disclosing the facts or data underlying an experts opinion.  706. Court-appointed expert witnesses.  ARTICLE VIII. HEARSAY  801. Definitions that apply to this article; exclusions from hearsay.  802. The rule against hearsay.  803. Exceptions to the rule against hearsayregardless of whether the declarant is available as a witness.  804. Exceptions to the rule against hearsaywhen the declarant is unavailable as a witness.  805. Hearsay within hearsay.  806. Attacking and supporting the declarants credibility.  807. Residual exception.  ARTICLE IX. AUTHENTICATION AND IDENTIFICATION  901. Authenticating or identifying evidence.  902. Evidence that is self-authenticating.  903. Subscribing witnesss testimony.  ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS  1001. Definitions that apply to this article.  1002. Requirement of the original.  1003. Admissibility of duplicates.  1004. Admissibility of other evidence of content.  1005. Copies of public records to prove content.  1006. Summaries to prove content.  1007. Testimony or statement of a party to prove content.  1008. Functions of the court and jury.  ARTICLE XI. MISCELLANEOUS RULES  1101. Applicability of the rules.  1102. Amendments.  1103. Title.  Table of Contents  The table of contents set out above has been editorially created to reflect the current contents of the Federal Rules of Evidence. A table of contents included in the Rules as enacted by Pub. L. 93595 Pub. L. 94149,  1(1) Dec. 12, 1975 89 Stat. 805 Pub. L. 95540,  2(b) Oct. 28, 1978 92 Stat. 2047 Pub. L. 100690, title VII,  7046(b) Nov. 18, 1988 102 Stat. 4401 Pub. L. 103322, title IV,  40141(c) Sept. 13, 1994 108 Stat. 1919 Pub. L. 110322,  1(b) Sept. 19, 2008 122 Stat. 3538 ARTICLE I. GENERAL PROVISIONS Rule 101. Scope; Definitions (a) Scope. These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101. (b) Definitions. In these rules: (1) civil case means a civil action or proceeding; (2) criminal case includes a criminal proceeding; (3) public office includes a public agency; (4) record includes a memorandum, report, or data compilation; (5) a rule prescribed by the Supreme Court means a rule adopted by the Supreme Court under statutory authority; and (6) a reference to any kind of written material or any other medium includes electronically stored information. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1929 Mar. 2, 1987 Oct. 1, 1987 Apr. 25, 1988 Nov. 1, 1988 Apr. 22, 1993 Dec. 1, 1993 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Rule 1101 specifies in detail the courts, proceedings, questions, and stages of proceedings to which the rules apply in whole or in part. Notes of Advisory Committee on Rules1987 Amendment United States bankruptcy judges are added to conform this rule with Rule 1101(b) and Bankruptcy Rule 9017. Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment This revision is made to conform the rule to changes made by the Judicial Improvements Act of 1990. Committee Notes on Rules2011 Amendment The language of Rule 101 has been amended, and definitions have been added, as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. The reference to electronically stored information is intended to track the language of Fed. R. Civ. P. 34. The Style Project The Evidence Rules are the fourth set of national procedural rules to be restyled. The restyled Rules of Appellate Procedure took effect in 1998. The restyled Rules of Criminal Procedure took effect in 2002. The restyled Rules of Civil Procedure took effect in 2007. The restyled Rules of Evidence apply the same general drafting guidelines and principles used in restyling the Appellate, Criminal, and Civil Rules. 1. General Guidelines Guidance in drafting, usage, and style was provided by Bryan Gamer, Guidelines for Drafting and Editing Court Rules Dictionary of Modern Legal Usage See also Guiding Principles for Restyling the Civil Rules Preliminary Draft of Proposed Style Revision of the Federal Rules of Civil Procedure Lessons in Drafting from the New Federal Rules of Civil Procedure Drafting Examples from the Proposed New Federal Rules of Evidence 2. Formatting Changes Many of the changes in the restyled Evidence Rules result from using format to achieve clearer presentations. The rules are broken down into constituent parts, using progressively indented subparagraphs with headings and substituting vertical for horizontal lists. Hanging indents are used throughout. These formatting changes make the structure of the rules graphic and make the restyled rules easier to read and understand even when the words are not changed. Rules 103, 404(b), 606(b), and 612 illustrate the benefits of formatting changes. 3. Changes to Reduce Inconsistent, Ambiguous, Redundant, Repetitive, or Archaic Words The restyled rules reduce the use of inconsistent terms that say the same thing in different ways. Because different words are presumed to have different meanings, such inconsistencies can result in confusion. The restyled rules reduce inconsistencies by using the same words to express the same meaning. For example, consistent expression is achieved by not switching between accused and defendant or between party opponent and opposing party or between the various formulations of civil and criminal action/case/proceeding. The restyled rules minimize the use of inherently ambiguous words. For example, the word shall can mean must, may, or something else, depending on context. The potential for confusion is exacerbated by the fact the word shall is no longer generally used in spoken or clearly written English. The restyled rules replace shall with must, may, or should, depending on which one the context and established interpretation make correct in each rule. The restyled rules minimize the use of redundant intensifiers. These are expressions that attempt to add emphasis, but instead state the obvious and create negative implications for other rules. The absence of intensifiers in the restyled rules does not change their substantive meaning. See, e.g. The restyled rules also remove words and concepts that are outdated or redundant. 4. Rule Numbers The restyled rules keep the same numbers to minimize the effect on research. Subdivisions have been rearranged within some rules to achieve greater clarity and simplicity. 5. No Substantive Change The Committee made special efforts to reject any purported style improvement that might result in a substantive change in the application of a rule. The Committee considered a change to be substantive if any of the following conditions were met: a b c d Rule 102. Purpose  These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1929 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules For similar provisions see Rule 2 of the Federal Rules of Criminal Procedure, Rule 1 of the Federal Rules of Civil Procedure, California Evidence Code  2, and New Jersey Evidence Rule 5. Committee Notes on Rules2011 Amendment The language of Rule 102 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 103. Rulings on Evidence (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the recordeither before or at triala party need not renew an objection or offer of proof to preserve a claim of error for appeal. (c) Courts Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. (e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1930 Apr. 17, 2000 Dec. 1, 2000 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) Chapman v. California id Subdivision (b) Subdivision (c) Bruton v. United States In re McConnell Subdivision (d) Committee Notes on Rules2000 Amendment The amendment applies to all rulings on evidence whether they occur at or before trial, including so-called  in limine in limine See, e.g., Collins v. Wayne Corp See, e.g., Rosenfeld v. Basquiat See, e.g., Fusco v. General Motors Corp Wilson v. Williams The amendment provides that a claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a). When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity. See United States v. Mejia-Alarcon See, e.g., United States v. Vest in limine United States v. Valenti in limine The amendment imposes the obligation on counsel to clarify whether an in limine See, e.g., Walden v. Georgia-Pacific Corp Even where the courts ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered. If the court changes its initial ruling, or if the opposing party violates the terms of the initial ruling, objection must be made when the evidence is offered to preserve the claim of error for appeal. The error, if any, in such a situation occurs only when the evidence is offered and admitted. United States Aviation Underwriters, Inc. v. Olympia Wings, Inc in limine United States v. Roenigk A definitive advance ruling is reviewed in light of the facts and circumstances before the trial court at the time of the ruling. If the relevant facts and circumstances change materially after the advance ruling has been made, those facts and circumstances cannot be relied upon on appeal unless they have been brought to the attention of the trial court by way of a renewed, and timely, objection, offer of proof, or motion to strike. See Old Chief v. United States See Huddleston v. United States sua sponte Nothing in the amendment is intended to affect the provisions of Fed.R.Civ.P. 72(a) or 28 U.S.C.  636(b)(1) pertaining to nondispositive pretrial rulings by magistrate judges in proceedings that are not before a magistrate judge by consent of the parties. Fed.R.Civ.P. 72(a) provides that a party who fails to file a written objection to a magistrate judges nondispositive order within ten days of receiving a copy may not thereafter assign as error a defect in the order. 28 U.S.C.  636(b)(1) provides that any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court within ten days of receiving a copy of the order. Several courts have held that a party must comply with this statutory provision in order to preserve a claim of error. See, e.g., Wells v. Shriners Hospital Nothing in the amendment is intended to affect the rule set forth in Luce v. United States Luce Luce See United States v. DiMatteo Luce See also United States v. Goldman Luce Palmieri v. DeFaria in limine United States v. Ortiz United States v. Bond in limine The amendment does not purport to answer whether a party who objects to evidence that the court finds admissible in a definitive ruling, and who then offers the evidence to remove the sting of its anticipated prejudicial effect, thereby waives the right to appeal the trial courts ruling. See, e.g., United States v. Fisher in limine Judd v. Rodman in limine Gill v. Thomas United States v. Williams GAP ReportProposed Amendment to Rule 103(a) 1. A minor stylistic change was made in the text, in accordance with the suggestion of the Style Subcommittee of the Standing Committee on Rules of Practice and Procedure. 2. The second sentence of the amended portion of the published draft was deleted, and the Committee Note was amended to reflect the fact that nothing in the amendment is intended to affect the rule of Luce v. United States. 3. The Committee Note was updated to include cases decided after the proposed amendment was issued for public comment. 4. The Committee Note was amended to include a reference to a Civil Rule and a statute requiring objections to certain Magistrate Judge rulings to be made to the District Court. 5. The Committee Note was revised to clarify that an advance ruling does not encompass subsequent developments at trial that might be the subject of an appeal. Committee Notes on Rules2011 Amendment The language of Rule 103 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 104. Preliminary Questions (a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires. (d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case. (e) Evidence Relevant to Weight and Credibility. This rule does not limit a partys right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1930 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of the Advisory Committee on Proposed Rules Subdivision (a) To the extent that these inquiries are factual, the judge acts as a trier of fact. Often, however, rulings on evidence call for an evaluation in terms of a legally set standard. Thus when a hearsay statement is offered as a declaration against interest, a decision must be made whether it possesses the required against-interest characteristics. These decisions, too, are made by the judge. In view of these considerations, this subdivision refers to preliminary requirements generally by the broad term questions, without attempt at specification. This subdivision is of general application. It must, however, be read as subject to the special provisions for conditional relevancy in subdivision (b) and those for confessions in subdivision (d). If the question is factual in nature, the judge will of necessity receive evidence pro and con on the issue. The rule provides that the rules of evidence in general do not apply to this process. McCormick  53, p. 123, n. 8, points out that the authorities are scattered and inconclusive, and observes: Should the exclusionary law of evidence, the child of the jury system in Thayers phrase, be applied to this hearing before the judge? Sound sense backs the view that it should not, and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay. This view is reinforced by practical necessity in certain situations. An item, offered and objected to, may itself be considered in ruling on admissibility, though not yet admitted in evidence. Thus the content of an asserted declaration against interest must be considered in ruling whether it is against interest. Again, common practice calls for considering the testimony of a witness, particularly a child, in determining competency. Another example is the requirement of Rule 602 dealing with personal knowledge. In the case of hearsay, it is enough, if the declarant so far as appears [has] had an opportunity to observe the fact declared. McCormick,  10, p. 19. If concern is felt over the use of affidavits by the judge in preliminary hearings on admissibility, attention is directed to the many important judicial determinations made on the basis of affidavits. Rule 47 of the Federal Rules of Criminal Procedure provides: An application to the court for an order shall be by motion * * * It may be supported by affidavit. The Rules of Civil Procedure are more detailed. Rule 43(e), dealing with motions generally, provides: When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. Rule 4(g) provides for proof of service by affidavit. Rule 56 provides in detail for the entry of summary judgment based on affidavits. Affidavits may supply the foundation for temporary restraining orders under Rule 65(b). The study made for the California Law Revision Commission recommended an amendment to Uniform Rule 2 as follows: In the determination of the issue aforesaid [preliminary determination], exclusionary rules shall not apply, subject, however, to Rule 45 and any valid claim of privilege. Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII, Hearsay), Cal. Law Revision Commn, Rep., Rec. & Studies, 470 (1962). The proposal was not adopted in the California Evidence Code. The Uniform Rules are likewise silent on the subject. However, New Jersey Evidence Rule 8(1), dealing with preliminary inquiry by the judge, provides: In his determination the rules of evidence shall not apply except for Rule 4 [exclusion on grounds of confusion, etc.] or a valid claim of privilege. Subdivision (b) If preliminary questions of conditional relevancy were determined solely by the judge, as provided in subdivision (a), the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries. Accepted treatment, as provided in the rule, is consistent with that given fact questions generally. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. Morgan, supra The order of proof here, as generally, is subject to the control of the judge. Subdivision (c) Jackson v. Denno Subdivision (d) The rule does not address itself to questions of the subsequent use of testimony given by an accused at a hearing on a preliminary matter. See Walder v. United States Simmons v. United States Harris v. New York Subdivision (e) Notes of Committee on the Judiciary, House Report No. 93650 Rule 104(c) as submitted to the Congress provided that hearings on the admissibility of confessions shall be conducted outside the presence of the jury and hearings on all other preliminary matters should be so conducted when the interests of justice require. The Committee amended the Rule to provide that where an accused is a witness as to a preliminary matter, he has the right, upon his request, to be heard outside the jurys presence. Although recognizing that in some cases duplication of evidence would occur and that the procedure could be subject to abuse, the Committee believed that a proper regard for the right of an accused not to testify generally in the case dictates that he be given an option to testify out of the presence of the jury on preliminary matters. The Committee construes the second sentence of subdivision (c) as applying to civil actions and proceedings as well as to criminal cases, and on this assumption has left the sentence unamended. Notes of Committee on the Judiciary, Senate Report No. 931277 Under rule 104(c) the hearing on a preliminary matter may at times be conducted in front of the jury. Should an accused testify in such a hearing, waiving his privilege against self-incrimination as to the preliminary issue, rule 104(d) provides that he will not generally be subject to cross-examination as to any other issue. This rule is not, however, intended to immunize the accused from cross-examination where, in testifying about a preliminary issue, he injects other issues into the hearing. If he could not be cross-examined about any issues gratuitously raised by him beyond the scope of the preliminary matters, injustice result. Accordingly, in order to prevent any such unjust result, the committee intends the rule to be construed to provide that the accused may subject himself to cross-examination as to issues raised by his own testimony upon a preliminary matter before a jury. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 104 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes  If the court admits evidence that is admissible against a party or for a purposebut not against another party or for another purposethe court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1930 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules A close relationship exists between this rule and Rule 403 which requires exclusion when probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The present rule recognizes the practice of admitting evidence for a limited purpose and instructing the jury accordingly. The availability and effectiveness of this practice must be taken into consideration in reaching a decision whether to exclude for unfair prejudice under Rule 403. In Bruton v. United States Similar provisions are found in Uniform Rule 6; California Evidence Code  355; Kansas Code of Civil Procedure  60406; New Jersey Evidence Rule 6. The wording of the present rule differs, however, in repelling any implication that limiting or curative instructions are sufficient in all situations. Notes of Committee on the Judiciary, House Report No. 93650 Rule 106 as submitted by the Supreme Court (now Rule 105 in the bill) dealt with the subject of evidence which is admissible as to one party or for one purpose but is not admissible against another party or for another purpose. The Committee adopted this Rule without change on the understanding that it does not affect the authority of a court to order a severance in a multi-defendant case. Committee Notes on Rules2011 Amendment The language of Rule 105 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 106. Remainder of or Related Statements  If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other partor any other statementthat in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1930 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Proposed Rules The rule is an expression of the rule of completeness. McCormick  56. It is manifested as to depositions in Rule 32(a)(4) of the Federal Rules of Civil Procedure, of which the proposed rule is substantially a restatement. The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial. See McCormick  56; California Evidence Code  356. The rule does not in any way circumscribe the right of the adversary to develop the matter on cross-examination or as part of his own case. For practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 106 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Committee Notes on Rules2023 Amendment Rule 106 has been amended in two respects: (1) First, the amendment provides that if the existing fairness standard requires completion, then that completing statement is admissible over a hearsay objection. Courts have been in conflict over whether completing evidence properly required for completion under Rule 106 can be admitted over a hearsay objection. The Committee has determined that the rule of completeness, grounded in fairness, cannot fulfill its function if the party that creates a misimpression about the meaning of a proffered statement can then object on hearsay grounds and exclude a statement that would correct the misimpression. See United States v. Sutton The courts that have permitted completion over hearsay objections have not usually specified whether the completing remainder may be used for its truth or only for its non-hearsay value in showing context. Under the amended rule, the use to which a completing statement can be put will depend on the circumstances. In some cases, completion will be sufficient for the proponent of the completing statement if it is admitted to provide context for the initially proffered statement. In such situations, the completing statement is properly admitted over a hearsay objection because it is offered for a non-hearsay purpose. An example would be a completing statement that corrects a misimpression about what a party heard before undertaking a disputed action, where the partys state of mind is relevant. The completing statement in this example is admitted only to show what the party actually heard, regardless of the underlying truth of the completing statement. But in some cases, a completing statement places an initially proffered statement in context only if the completing statement is true. An example is the defendant in a murder case who admits that he owned the murder weapon, but also simultaneously states that he sold it months before the murder. The statement about selling the weapon corrects a misimpression only if it is offered for its truth. In such cases, Rule 106 operates to allow the completing statement to be offered as proof of a fact. (2) Second, Rule 106 has been amended to cover all statements, including oral statements that have not been recorded. Most courts have already found unrecorded completing statements to be admissible under either Rule 611(a) or the common-law rule of completeness. This procedure, while reaching the correct result, is cumbersome and creates a trap for the unwary. Most questions of completion arise when a statement is offered in the heat of trialwhere neither the parties nor the court should be expected to consider the nuances of Rule 611(a) or the common law in resolving completeness questions. The amendment, as a matter of convenience, covers these questions under one rule. The rule is expanded to now cover all statements, in any formincluding statements made through conduct or sign language. The original committee note cites practical reasons for limiting the coverage of the rule to writings and recordings. To the extent that the concern was about disputes over the content or existence of an unrecorded statement, that concern does not justify excluding all unrecorded statements completely from the coverage of the rule. See United States v. Bailey Nov. 16, 2017 Nov. 6, 2017 The rule retains the language that completion is made at the time the original portion is introduced. That said, many courts have held that the trial court has discretion to allow completion at a later point. See, e.g. Phoenix Assocs. III v. Stone The intent of the amendment is to displace the common-law rule of completeness. In Beech Aircraft Corp. v. Rainey The amendment does not give a green light of admissibility to all excised portions of statements. It does not change the basic rule, which applies only to the narrow circumstances in which a party has created a misimpression about the statement, and the adverse party proffers a statement that in fact corrects the misimpression. The mere fact that a statement is probative and contradicts a statement offered by the opponent is not enough to justify completion under Rule 106. So, for example, the mere fact that a defendant denies guilt before later admitting it does not, without more, mandate the admission of his previous denial. See United States v. Williams ARTICLE II. JUDICIAL NOTICE Rule 201. Judicial Notice of Adjudicative Facts (a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial courts territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (c) Taking Notice. The court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. (d) Timing. The court may take judicial notice at any stage of the proceeding. (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. (f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1930 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) The omission of any treatment of legislative facts results from fundamental differences between adjudicative facts and legislative facts. Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body. The terminology was coined by Professor Kenneth Davis in his article An Approach to Problems of Evidence in the Administrative Process, 55 Harv.L.Rev. 364, 404407 (1942). The following discussion draws extensively upon his writings. In addition, see the same authors Judicial Notice, 55 Colum.L. Rev. 945 (1955); Administrative Law Treatise, ch. 15 (1958); A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69 (1964). The usual method of establishing adjudicative facts in through the introduction of evidence, ordinarily consisting of the testimony of witnesses. If particular facts are outside of reasonable controversy, this process is dispensed with as unnecessary. A high degree of indisputability is the essential prerequisite. Legislative facts are quite different. As Professor Davis says:  My opinion is that judge-made law would stop growing if judges, in thinking about questions of law and policy, were forbidden to take into account the facts they believe, as distinguished from facts which are clearly * * * within the domain of the indisputable. Facts most needed in thinking about difficult problems of law and policy have a way of being outside the domain of the clearly indisputable. supra An illustration is Hawkins v. United States If the Model Code or the Uniform Rules had been applicable, the Court would have been barred from thinking about the essential factual ingredient of the problems before it, and such a result would be obviously intolerable. What the law needs as its growing points is more, not less, judicial thinking about the factual ingredients of problems of what the law ought to be, and the needed facts are seldom clearly indisputable. Davis, supra Professor Morgan gave the following description of the methodology of determining domestic law: In determining the content or applicability of a rule of domestic law, the judge is unrestricted in his investigation and conclusion. He may reject the propositions of either party or of both parties. He may consult the sources of pertinent data to which they refer, or he may refuse to do so. He may make an independent search for persuasive data or rest content with what he has or what the parties present. * * * [T]he parties do no more than to assist; they control no part of the process. Morgan, Judicial Notice, 57 Harv.L.Rev. 269, 270271 (1944). This is the view which should govern judicial access to legislative facts. It renders inappropriate any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level. It should, however, leave open the possibility of introducing evidence through regular channels in appropriate situations. See Bordens Farm Products Co. v. Baldwin Similar considerations govern the judicial use of nonadjudicative facts in ways other than formulating laws and rules. Thayer described them as a part of the judicial reasoning process. In conducting a process of judicial reasoning, as of other reasoning, not a step can be taken without assuming something which has not been proved; and the capacity to do this with competent judgement and efficiency, is imputed to judges and juries as part of their necessary mental outfit. Thayer, Preliminary Treatise on Evidence 279280 (1898). As Professor Davis points out, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, 73 (1964), every case involves the use of hundreds or thousands of non-evidence facts. When a witness in an automobile accident case says car, everyone, judge and jury included, furnishes, from non-evidence sources within himself, the supplementing information that the car is an automobile, not a railroad car, that it is self-propelled, probably by an internal combustion engine, that it may be assumed to have four wheels with pneumatic rubber tires, and so on. The judicial process cannot construct every case from scratch, like Descartes creating a world based on the postulate Cogito, ergo sum Another aspect of what Thayer had in mind is the use of non-evidence facts to appraise or assess the adjudicative facts of the case. Pairs of cases from two jurisdictions illustrate this use and also the difference between non-evidence facts thus used and adjudicative facts. In People v. Strook People v. Pride Hughes v. Vestal Ennis v. Dupree Brown v. Hale Clayton v. Rimmer In view of these considerations, the regulation of judicial notice of facts by the present rule extends only to adjudicative facts. What, then, are adjudicative facts? Davis refers to them as those which relate to the parties, or more fully:  When a court or an agency finds facts concerning the immediate partieswho did what, where, when, how, and with what motive or intentthe court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts. * * * Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses. Subdivision (b) The reason we use trial-type procedure, I think, is that we make the practical judgement, on the basis of experience, that taking evidence, subject to cross-examination and rebuttal, is the best way to resolve controversies involving disputes of adjudicative facts, that is, facts pertaining to the parties. The reason we require a determination on the record is that we think fair procedure in resolving disputes of adjudicative facts calls for giving each party a chance to meet in the appropriate fashion the facts that come to the tribunals attention, and the appropriate fashion for meeting disputed adjudicative facts includes rebuttal evidence, cross-examination, usually confrontation, and argument (either written or oral or both). The key to a fair trial is opportunity to use the appropriate weapons (rebuttal evidence, cross-examination, and argument) to meet adverse materials that come to the tribunals attention. A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, 93 (1964). The rule proceeds upon the theory that these considerations call for dispensing with traditional methods of proof only in clear cases. Compare Professor Davis conclusion that judicial notice should be a matter of convenience, subject to requirements of procedural fairness. Id This rule is consistent with Uniform Rule 9(1) and (2) which limit judicial notice of facts to those so universally known that they cannot reasonably be the subject of dispute, those so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute, and those capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy. The traditional textbook treatment has included these general categories (matters of common knowledge, facts capable of verification), McCormick  324, 325, and then has passed on into detailed treatment of such specific topics as facts relating to the personnel and records of the court, Id Id The phrase propositions of generalized knowledge, found in Uniform Rule 9(1) and (2) is not included in the present rule. It was, it is believed, originally included in Model Code Rules 801 and 802 primarily in order to afford some minimum recognition to the right of the judge in his legislative capacity (not acting as the trier of fact) to take judicial notice of very limited categories of generalized knowledge. The limitations thus imposed have been discarded herein as undesirable, unworkable, and contrary to existing practice. What is left, then, to be considered, is the status of a proposition of generalized knowledge as an adjudicative fact to be noticed judicially and communicated by the judge to the jury. Thus viewed, it is considered to be lacking practical significance. While judges use judicial notice of propositions of generalized knowledge in a variety of situations: determining the validity and meaning of statutes, formulating common law rules, deciding whether evidence should be admitted, assessing the sufficiency and effect of evidence, all are essentially nonadjudicative in nature. When judicial notice is seen as a significant vehicle for progress in the law, these are the areas involved, particularly in developing fields of scientific knowledge. See McCormick 712. It is not believed that judges now instruct juries as to propositions of generalized knowledge derived from encyclopedias or other sources, or that they are likely to do so, or, indeed, that it is desirable that they do so. There is a vast difference between ruling on the basis of judicial notice that radar evidence of speed is admissible and explaining to the jury its principles and degree of accuracy, or between using a table of stopping distances of automobiles at various speeds in a judicial evaluation of testimony and telling the jury its precise application in the case. For cases raising doubt as to the propriety of the use of medical texts by lay triers of fact in passing on disability claims in administrative proceedings, see Sayers v. Gardner Ross v. Gardner Sosna v. Celebrezze Glendenning v. Ribicoff Subdivisions (c) and (d) Compare Uniform Rule 9 making judicial notice of facts universally known mandatory without request, and making judicial notice of facts generally known in the jurisdiction or capable of determination by resort to accurate sources discretionary in the absence of request but mandatory if request is made and the information furnished. But see Uniform Rule 10(3), which directs the judge to decline to take judicial notice if available information fails to convince him that the matter falls clearly within Uniform Rule 9 or is insufficient to enable him to notice it judicially. Substantially the same approach is found in California Evidence Code  451453 and in New Jersey Evidence Rule 9. In contrast, the present rule treats alike all adjudicative facts which are subject to judicial notice. Subdivision (e) Subdivision (f) Subdivision (g) The writers have been divided. Favoring admissibility are Thayer, Preliminary Treatise on Evidence 308 (1898); 9 Wigmore  2567; Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law, 69, 7677 (1964). Opposing admissibility are Keeffe, Landis and Shaad, Sense and Nonsense about Judicial Notice, 2 Stan.L.Rev. 664, 668 (1950); McNaughton, Judicial NoticeExcerpts Relating to the Morgan-Whitmore Controversy, 14 Vand.L.Rev. 779 (1961); Morgan, Judicial Notice, 57 Harv.L.Rev. 269, 279 (1944); McCormick 710711. The Model Code and the Uniform Rules are predicated upon indisputability of judicially noticed facts. The proponents of admitting evidence in disproof have concentrated largely upon legislative facts. Since the present rule deals only with judicial notice of adjudicative facts, arguments directed to legislative facts lose their relevancy. Within its relatively narrow area of adjudicative facts, the rule contemplates there is to be no evidence before the jury in disproof. The judge instructs the jury to take judicially noticed facts as established. This position is justified by the undesirable effects of the opposite rule in limiting the rebutting party, though not his opponent, to admissible evidence, in defeating the reasons for judicial notice, and in affecting the substantive law to an extent and in ways largely unforeseeable. Ample protection and flexibility are afforded by the broad provision for opportunity to be heard on request, set forth in subdivision (e). Authority upon the propriety of taking judicial notice against an accused in a criminal case with respect to matters other than venue is relatively meager. Proceeding upon the theory that the right of jury trial does not extend to matters which are beyond reasonable dispute, the rule does not distinguish between criminal and civil cases. People v. Mayes Ross v. United States State v. Main State v. Lawrence Note on Judicial Notice of Law July 1, 1966 Notes of Committee on the Judiciary, House Report No. 93650 Rule 201(g) as received from the Supreme Court provided that when judicial notice of a fact is taken, the court shall instruct the jury to accept that fact as established. Being of the view that mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially noticed is inappropriate because contrary to the spirit of the Sixth Amendment right to a jury trial, the Committee adopted the 1969 Advisory Committee draft of this subsection, allowing a mandatory instruction in civil actions and proceedings and a discretionary instruction in criminal cases. Committee Notes on Rules2011 Amendment The language of Rule 201 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. ARTICLE III. PRESUMPTIONS IN CIVIL CASES Rule 301. Presumptions in Civil Cases Generally  In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1931 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules This rule governs presumptions generally. See Rule 302 for presumptions controlled by state law and Rule 303 [deleted] for those against an accused in a criminal case. Presumptions governed by this rule are given the effect of placing upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic facts giving rise to it. The same considerations of fairness, policy, and probability which dictate the allocation of the burden of the various elements of a case as between the prima facie case of a plaintiff and affirmative defenses also underlie the creation of presumptions. These considerations are not satisfied by giving a lesser effect to presumptions. Morgan and Maguire, Looking Backward and Forward at Evidence, 50 Harv.L.Rev. 909, 913 (1937); Morgan, Instructing the Jury upon Presumptions and Burdon of Proof, 47 Harv.L.Rev. 59, 82 1933); Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12 Stan.L.Rev. 5 (1959). The so-called bursting bubble theory, under which a presumption vanishes upon the introduction of evidence which would support a finding of the nonexistence of the presumed fact, even though not believed, is rejected as according presumptions too slight and evanescent an effect. Morgan and Maguire, supra In the opinion of the Advisory Committee, no constitutional infirmity attends this view of presumptions. In Mobile, J. & K.C.R. Co. v. Turnipseed Western & Atlantic R. Co. v. Henderson Turnipseed Turnipseed Henderson Two factors serve to explain Henderson Turnipseed Henderson Any doubt as to the constitutional permissibility of a presumption imposing a burden of persuasion of the non-existence of the presumed fact in civil cases is laid at rest by Dick v. New York Life Ins. Co Proof of coverage and of death by gunshot wound shifts the burden to the insurer to establish that the death of the insured was due to his suicide. 359 U.S. at 443, 79 S.Ct. at 925. In a case like this one, North Dakota presumes that death was accidental and places on the insurer the burden of proving that death resulted from suicide. Id The rational connection requirement survives in criminal cases, Tot v. United States Ferry v. Ramsey Id The Sutherland view has prevailed in criminal cases by virtue of the higher standard of notice there required. The fiction that everyone is presumed to know the law is applied to the substantive law of crimes as an alternative to complete unenforceability. But the need does not extend to criminal evidence and procedure, and the fiction does not encompass them. Rational connection is not fictional or artificial, and so it is reasonable to suppose that Gainey should have known that his presence at the site of an illicit still could convict him of being connected with (carrying on) the business, United States v. Gainey United States v. Romano In his dissent in Gainey, Mr. Justice Black put it more artistically: It might be argued, although the Court does not so argue or hold, that Congress if it wished could make presence at a still a crime in itself, and so Congress should be free to create crimes which are called possession and carrying on an illegal distillery business but which are defined in such a way that unexplained presence is sufficient and indisputable evidence in all cases to support conviction for those offenses. See Ferry v. Ramsey Heiner v. Donnan Lanzetta v. New Jersey And the majority opinion in Romano It may be, of course, that Congress has the power to make presence at an illegal still a punishable crime, but we find no clear indication that it intended to so exercise this power. The crime remains possession, not presence, and with all due deference to the judgement of Congress, the former may not constitutionally be inferred from the latter. 382 U.S. at 144, 86 S.Ct. at 284. The rule does not spell out the procedural aspects of its application. Questions as to when the evidence warrants submission of a presumption and what instructions are proper under varying states of fact are believed to present no particular difficulties. Notes of Committee on the Judiciary, House Report No. 93650 Rule 301 as submitted by the Supreme Court provided that in all cases a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. The Committee limited the scope of Rule 301 to civil actions and proceedings to effectuate its decision not to deal with the question of presumptions in criminal cases. (See note on [proposed] Rule 303 in discussion of Rules deleted). With respect to the weight to be given a presumption in a civil case, the Committee agreed with the judgement implicit in the Courts version that the socalled bursting bubble theory of presumptions, whereby a presumption vanished upon the appearance of any contradicting evidence by the other party, gives to presumptions too slight an effect. On the other hand, the Committee believed that the Rule proposed by the Court, whereby a presumption permanently alters the burden of persuasion, no matter how much contradicting evidence is introduceda view shared by only a few courtslends too great a force to presumptions. Accordingly, the Committee amended the Rule to adopt an intermediate position under which a presumption does not vanish upon the introduction of contradicting evidence, and does not change the burden of persuasion; instead it is merely deemed sufficient evidence of the fact presumed, to be considered by the jury or other finder of fact. Notes of Committee on the Judiciary, Senate Report No. 931277 The rule governs presumptions in civil cases generally. Rule 302 provides for presumptions in cases controlled by State law. As submitted by the Supreme Court, presumptions governed by this rule were given the effect of placing upon the opposing party the burden of establishing the non-existence of the presumed fact, once the party invoking the presumption established the basic facts giving rise to it. Instead of imposing a burden of persuasion on the party against whom the presumption is directed, the House adopted a provision which shifted the burden of going forward with the evidence. They further provided that even though met with contradicting evidence, a presumption is sufficient evidence of the fact presumed, to be considered by the trier of fact. The effect of the amendment is that presumptions are to be treated as evidence. The committee feels the House amendment is ill-advised. As the joint committees (the Standing Committee on Practice and Procedure of the Judicial Conference and the Advisory Committee on the Rules of Evidence) stated: Presumptions are not evidence, but ways of dealing with evidence. Speck v. Sarver Professor McCormick gives a concise and compelling critique of the presumption as evidence rule: * * * * * Another solution, formerly more popular than now, is to instruct the jury that the presumption is evidence, to be weighed and considered with the testimony in the case. This avoids the danger that the jury may infer that the presumption is conclusive, but it probably means little to the jury, and certainly runs counter to accepted theories of the nature of evidence. [McCormick, Evidence, 669 (1954); Id For these reasons the committee has deleted that provision of the House-passed rule that treats presumptions as evidence. The effect of the rule as adopted by the committee is to make clear that while evidence of facts giving rise to a presumption shifts the burden of coming forward with evidence to rebut or meet the presumption, it does not shift the burden of persuasion on the existence of the presumed facts. The burden or persuasion remains on the party to whom it is allocated under the rules governing the allocation in the first instance. The court may instruct the jury that they may infer the existence of the presumed fact from proof of the basic facts giving rise to the presumption. However, it would be inappropriate under this rule to instruct the jury that the inference they are to draw is conclusive. Notes of Conference Committee, House Report No. 931597 The House bill provides that a presumption in civil actions and proceedings shifts to the party against whom it is directed the burden of going forward with evidence to meet or rebut it. Even though evidence contradicting the presumption is offered, a presumption is considered sufficient evidence of the presumed fact to be considered by the jury. The Senate amendment provides that a presumption shifts to the party against whom it is directed the burden of going forward with evidence to meet or rebut the presumption, but it does not shift to that party the burden of persuasion on the existence of the presumed fact. Under the Senate amendment, a presumption is sufficient to get a party past an adverse partys motion to dismiss made at the end of his case-in-chief. If the adverse party offers no evidence contradicting the presumed fact, the court will instruct the jury that if it finds the basic facts, it may presume the existence of the presumed fact. If the adverse party does offer evidence contradicting the presumed fact, the court cannot instruct the jury that it may presume The Conference adopts the Senate amendment. Committee Notes on Rules2011 Amendment The language of Rule 301 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 302. Applying State Law to Presumptions in Civil Cases  In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1931 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules A series of Supreme Court decisions in diversity cases leaves no doubt of the relevance of Erie Railroad Co. v. Tompkins Cities Service Oil Co. v. Dunlap Palmer v. Hoffman Dick v. New York Life Ins. Co The situations in which the state law is applied have been tagged for convenience in the preceding discussion as diversity cases. The designation is not a completely accurate one since Erie Vestal, Erie R.R. v. Tompkins Committee Notes on Rules2011 Amendment The language of Rule 302 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. ARTICLE IV. RELEVANCE AND ITS LIMITS Rule 401. Test for Relevant Evidence Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1931 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Problems of relevancy call for an answer to the question whether an item of evidence, when tested by the processes of legal reasoning, possesses sufficient probative value to justify receiving it in evidence. Thus, assessment of the probative value of evidence that a person purchased a revolver shortly prior to a fatal shooting with which he is charged is a matter of analysis and reasoning. The variety of relevancy problems is coextensive with the ingenuity of counsel in using circumstantial evidence as a means of proof. An enormous number of cases fall in no set pattern, and this rule is designed as a guide for handling them. On the other hand, some situations recur with sufficient frequency to create patterns susceptible of treatment by specific rules. Rule 404 and those following it are of that variety; they also serve as illustrations of the application of the present rule as limited by the exclusionary principles of Rule 403. Passing mention should be made of so-called conditional relevancy. Morgan, Basic Problems of Evidence 4546 (1962). In this situation, probative value depends not only upon satisfying the basic requirement of relevancy as described above but also upon the existence of some matter of fact. For example, if evidence of a spoken statement is relied upon to prove notice, probative value is lacking unless the person sought to be charged heard the statement. The problem is one of fact, and the only rules needed are for the purpose of determining the respective functions of judge and jury. See Rules 104(b) and 901. The discussion which follows in the present note is concerned with relevancy generally, not with any particular problem of conditional relevancy. Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Does the item of evidence tend to prove the matter sought to be proved? Whether the relationship exists depends upon principles evolved by experience or science, applied logically to the situation at hand. James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689, 696, n. 15 (1941), in Selected Writings on Evidence and Trial 610, 615, n. 15 (Fryer ed. 1957). The rule summarizes this relationship as a tendency to make the existence of the fact to be proved more probable or less probable. Compare Uniform Rule 1(2) which states the crux of relevancy as a tendency in reason, thus perhaps emphasizing unduly the logical process and ignoring the need to draw upon experience or science to validate the general principle upon which relevancy in a particular situation depends. The standard of probability under the rule is more * * * probable than it would be without the evidence. Any more stringent requirement is unworkable and unrealistic. As McCormick  152, p. 317, says, A brick is not a wall, or, as Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 576 (1956), quotes Professor McBaine, * * * [I]t is not to be supposed that every witness can make a home run. Dealing with probability in the language of the rule has the added virtue of avoiding confusion between questions of admissibility and questions of the sufficiency of the evidence. The rule uses the phrase fact that is of consequence to the determination of the action to describe the kind of fact to which proof may properly be directed. The language is that of California Evidence Code  210; it has the advantage of avoiding the loosely used and ambiguous word material. Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. I. General Provisions), Cal. Law Revision Commn, Rep., Rec. & Studies, 1011 (1964). The fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the determination of the action. Cf. Uniform Rule 1(2) which requires that the evidence relate to a material fact. The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute. Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category. A rule limiting admissibility to evidence directed to a controversial point would invite the exclusion of this helpful evidence, or at least the raising of endless questions over its admission. Cf. California Evidence Code  210, defining relevant evidence in terms of tendency to prove a disputed fact. Committee Notes on Rules2011 Amendment The language of Rule 401 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 402. General Admissibility of Relevant Evidence  Relevant evidence is admissible unless any of the following provides otherwise:  the United States Constitution;  a federal statute;  these rules; or  other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1931 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are a presupposition involved in the very conception of a rational system of evidence. Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the foundation upon which the structure of admission and exclusion rests. For similar provisions see California Evidence Code  350, 351. Provisions that all relevant evidence is admissible are found in Uniform Rule 7(f); Kansas Code of Civil Procedure  60407(f); and New Jersey Evidence Rule 7(f); but the exclusion of evidence which is not relevant is left to implication. Not all relevant evidence is admissible. The exclusion of relevant evidence occurs in a variety of situations and may be called for by these rules, by the Rules of Civil and Criminal Procedure, by Bankruptcy Rules, by Act of Congress, or by constitutional considerations. Succeeding rules in the present article, in response to the demands of particular policies, require the exclusion of evidence despite its relevancy. In addition, Article V recognizes a number of privileges; Article VI imposes limitations upon witnesses and the manner of dealing with them; Article VII specifies requirements with respect to opinions and expert testimony; Article VIII excludes hearsay not falling within an exception; Article IX spells out the handling of authentication and identification; and Article X restricts the manner of proving the contents of writings and recordings. The Rules of Civil and Criminal Procedure in some instances require the exclusion of relevant evidence. For example, Rules 30(b) and 32(a)(3) of the Rules of Civil Procedure, by imposing requirements of notice and unavailability of the deponent, place limits on the use of relevant depositions. Similarly, Rule 15 of the Rules of Criminal Procedure restricts the use of depositions in criminal cases, even though relevant. And the effective enforcement of the command, originally statutory and now found in Rule 5(a) of the Rules of Criminal Procedure, that an arrested person be taken without unnecessary delay before a commissioner of other similar officer is held to require the exclusion of statements elicited during detention in violation thereof. Mallory v. United States While congressional enactments in the field of evidence have generally tended to expand admissibility beyond the scope of the common law rules, in some particular situations they have restricted the admissibility of relevant evidence. Most of this legislation has consisted of the formulation of a privilege or of a prohibition against disclosure. 8 U.S.C.  1202(f), records of refusal of visas or permits to enter United States confidential, subject to discretion of Secretary of State to make available to court upon certification of need; 10 U.S.C.  3693, replacement certificate of honorable discharge from Army not admissible in evidence; 10 U.S.C.  8693, same as to Air Force; 11 U.S.C.  25(a)(10), testimony given by bankrupt on his examination not admissible in criminal proceedings against him, except that given in hearing upon objection to discharge; 11 U.S.C.  205(a), railroad reorganization petition, if dismissed, not admissible in evidence; 11 U.S.C.  403(a), list of creditors filed with municipal composition plan not an admission; 13 U.S.C.  9(a), census information confidential, retained copies of reports privileged; 47 U.S.C.  605, interception and divulgence of wire or radio communications prohibited unless authorized by sender. These statutory provisions would remain undisturbed by the rules. The rule recognizes but makes no attempt to spell out the constitutional considerations which impose basic limitations upon the admissibility of relevant evidence. Examples are evidence obtained by unlawful search and seizure, Weeks v. United States Katz v. United States Massiah v. United States Notes of Committee on the Judiciary, House Report No. 93650 Rule 402 as submitted to the Congress contained the phrase or by other rules adopted by the Supreme Court. To accommodate the view that the Congress should not appear to acquiesce in the Courts judgment that it has authority under the existing Rules Enabling Acts to promulgate Rules of Evidence, the Committee amended the above phrase to read or by other rules prescribed by the Supreme Court pursuant to statutory authority in this and other Rules where the reference appears. Committee Notes on Rules2011 Amendment The language of Rule 402 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons  The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1932 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission. Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1, 1215 (1956); Trautman, Logical or Legal RelevancyA Conflict in Theory, 5 Van. L. Rev. 385, 392 (1952); McCormick  152, pp. 319321. The rules which follow in this Article are concrete applications evolved for particular situations. However, they reflect the policies underlying the present rule, which is designed as a guide for the handling of situations for which no specific rules have been formulated. Exclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time, all find ample support in the authorities. Unfair prejudice within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. The rule does not enumerate surprise as a ground for exclusion, in this respect following Wigmores view of the common law. 6 Wigmore  1849. Cf. McCormick  152, p. 320, n. 29, listing unfair surprise as a ground for exclusion but stating that it is usually coupled with the danger of prejudice and confusion of issues. While Uniform Rule 45 incorporates surprise as a ground and is followed in Kansas Code of Civil Procedure  60445, surprise is not included in California Evidence Code  352 or New Jersey Rule 4, though both the latter otherwise substantially embody Uniform Rule 45. While it can scarcely be doubted that claims of unfair surprise may still be justified despite procedural requirements of notice and instrumentalities of discovery, the granting of a continuance is a more appropriate remedy than exclusion of the evidence. Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. VI. Extrinsic Policies Affecting Admissibility), Cal. Law Revision Commn, Rep., Rec. & Studies, 612 (1964). Moreover, the impact of a rule excluding evidence on the ground of surprise would be difficult to estimate. In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. See Rule 106 [now 105] and Advisory Committees Note thereunder. The availability of other means of proof may also be an appropriate factor. Committee Notes on Rules2011 Amendment The language of Rule 403 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts. (a) Character Evidence. (1)  Prohibited Uses. (2)  Exceptions for a Defendant or Victim in a Criminal Case. (A) a defendant may offer evidence of the defendants pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victims pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendants same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victims trait of peacefulness to rebut evidence that the victim was the first aggressor. (3)  Exceptions for a Witness. (b) Other Crimes, Wrongs, or Acts. (1)  Prohibited Uses. (2)  Permitted Uses. (3)  Notice in a Criminal Case. (A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; (B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and (C) do so in writing before trialor in any form during trial if the court, for good cause, excuses lack of pretrial notice. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1932 Mar. 2, 1987 Oct. 1, 1987 Apr. 30, 1991 Dec. 1, 1991 Apr. 17, 2000 Dec. 1, 2000 Apr. 12, 2006 Dec. 1, 2006 Apr. 26, 2011 Dec. 1, 2011 Apr. 27, 2020 Dec. 1, 2020  Notes of Advisory Committee on Proposed Rules Subdivision (a) Character questions arise in two fundamentally different ways. (1) Character may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as character in issue. Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject. The only question relates to allowable methods of proof, as to which see Rule 405, immediately following. (2) Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as circumstantial. Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft. This circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof. In most jurisdictions today, the circumstantial use of character is rejected but with important exceptions: (1) an accused may introduce pertinent evidence of good character (often misleadingly described as putting his character in issue), in which event the prosecution may rebut with evidence of bad character; (2) an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide or consent in a case of rape, and the prosecution may introduce similar evidence in rebuttal of the character evidence, or, in a homicide case, to rebut a claim that deceased was the first aggressor, however proved; and (3) the character of a witness may be gone into as bearing on his credibility. McCormick  155161. This pattern is incorporated in the rule. While its basis lies more in history and experience than in logic as underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutger, L.Rev. 574, 584 (1956); McCormick  157. In any event, the criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence. The limitation to pertinent traits of character, rather than character generally, in paragraphs (1) and (2) is in accordance with the prevailing view. McCormick  158, p. 334. A similar provision in Rule 608, to which reference is made in paragraph (3), limits character evidence respecting witnesses to the trait of truthfulness or untruthfulness. The argument is made that circumstantial use of character ought to be allowed in civil cases to the same extent as in criminal cases, i.e. evidence of good (nonprejudicial) character would be admissible in the first instance, subject to rebuttal by evidence of bad character. Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 581583 (1956); Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. VI. Extrinsic Policies Affecting Admissibility), Cal. Law Revision Commn, Rep., Rec. & Studies, 657658 (1964). Uniform Rule 47 goes farther, in that it assumes that character evidence in general satisfies the conditions of relevancy, except as provided in Uniform Rule 48. The difficulty with expanding the use of character evidence in civil cases is set forth by the California Law Revision Commission in its ultimate rejection of Uniform Rule 47, Id  Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened. Much of the force of the position of those favoring greater use of character evidence in civil cases is dissipated by their support of Uniform Rule 48 which excludes the evidence in negligence cases, where it could be expected to achieve its maximum usefulness. Moreover, expanding concepts of character, which seem of necessity to extend into such areas as psychiatric evaluation and psychological testing, coupled with expanded admissibility, would open up such vistas of mental examinations as caused the Court concern in Schlagenhauf v. Holder Subdivision (b) Notes of Committee on the Judiciary, House Report No. 93650 The second sentence of Rule 404(b) as submitted to the Congress began with the words This subdivision does not exclude the evidence when offered. The Committee amended this language to read It may, however, be admissible, the words used in the 1971 Advisory Committee draft, on the ground that this formulation properly placed greater emphasis on admissibility than did the final Court version. Notes of Committee on the Judiciary, Senate Report No. 931277 This rule provides that evidence of other crimes, wrongs, or acts is not admissible to prove character but may be admissible for other specified purposes such as proof of motive. Although your committee sees no necessity in amending the rule itself, it anticipates that the use of the discretionary word may with respect to the admissibility of evidence of crimes, wrongs, or acts is not intended to confer any arbitrary discretion on the trial judge. Rather, it is anticipated that with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i.e. prejudice, confusion or waste of time. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1991 Amendment Rule 404(b) has emerged as one of the most cited Rules in the Rules of Evidence. And in many criminal cases evidence of an accuseds extrinsic acts is viewed as an important asset in the prosecutions case against an accused. Although there are a few reported decisions on use of such evidence by the defense, see, e.g., United States v. McClure The amendment to Rule 404(b) adds a pretrial notice requirement in criminal cases and is intended to reduce surprise and promote early resolution on the issue of admissibility. The notice requirement thus places Rule 404(b) in the mainstream with notice and disclosure provisions in other rules of evidence. See, e.g The Rule expects that counsel for both the defense and the prosecution will submit the necessary request and information in a reasonable and timely fashion. Other than requiring pretrial notice, no specific time limits are stated in recognition that what constitutes a reasonable request or disclosure will depend largely on the circumstances of each case. Compare with Likewise, no specific form of notice is required. The Committee considered and rejected a requirement that the notice satisfy the particularity requirements normally required of language used in a charging instrument. Cf The amendment requires the prosecution to provide notice, regardless of how it intends to use the extrinsic act evidence at trial, i.e., during its case-in-chief, for impeachment, or for possible rebuttal. The court in its discretion may, under the facts, decide that the particular request or notice was not reasonable, either because of the lack of timeliness or completeness. Because the notice requirement serves as condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met. Nothing in the amendment precludes the court from requiring the government to provide it with an opportunity to rule in limine in limine The amendment does not extend to evidence of acts which are intrinsic to the charged offense, see United States v. Williams See United States v. Huddleston Committee Notes on Rules2000 Amendment Rule 404(a)(1) has been amended to provide that when the accused attacks the character of an alleged victim under subdivision (a)(2) of this Rule, the door is opened to an attack on the same character trait of the accused. Current law does not allow the government to introduce negative character evidence as to the accused unless the accused introduces evidence of good character. See, e.g., United States v. Fountain The amendment makes clear that the accused cannot attack the alleged victims character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. For example, in a murder case with a claim of self-defense, the accused, to bolster this defense, might offer evidence of the alleged victims violent disposition. If the government has evidence that the accused has a violent character, but is not allowed to offer this evidence as part of its rebuttal, the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor. This may be the case even if evidence of the accuseds prior violent acts is admitted under Rule 404(b), because such evidence can be admitted only for limited purposes and not to show action in conformity with the accuseds character on a specific occasion. Thus, the amendment is designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim. The amendment does not affect the admissibility of evidence of specific acts of uncharged misconduct offered for a purpose other than proving character under Rule 404(b). Nor does it affect the standards for proof of character by evidence of other sexual behavior or sexual offenses under Rules 412415. By its placement in Rule 404(a)(1), the amendment covers only proof of character by way of reputation or opinion. The amendment does not permit proof of the accuseds character if the accused merely uses character evidence for a purpose other than to prove the alleged victims propensity to act in a certain way. See United States v. Burks The term alleged is inserted before each reference to victim in the Rule, in order to provide consistency with Evidence Rule 412. GAP ReportProposed Amendment to Rule 404(a) 1. The term a pertinent trait of character was changed to the same trait of character, in order to limit the scope of the governments rebuttal. The Committee Note was revised to accord with this change in the text. 2. The word alleged was added before each reference in the Rule to a victim in order to provide consistency with Evidence Rule 412. The Committee Note was amended to accord with this change in the text. 3. The Committee Note was amended to clarify that rebuttal is not permitted under this Rule if the accused proffers evidence of the alleged victims character for a purpose other than to prove the alleged victims propensity to act in a certain manner. Committee Notes on Rules2006 Amendment The Rule has been amended to clarify that in a civil case evidence of a persons character is never admissible to prove that the person acted in conformity with the character trait. The amendment resolves the dispute in the case law over whether the exceptions in subdivisions (a)(1) and (2) permit the circumstantial use of character evidence in civil cases. Compare Carson v. Polley with SEC v. Towers Financial Corp. See Ginter v. Northwestern Mut. Life Ins. Co. The circumstantial use of character evidence is generally discouraged because it carries serious risks of prejudice, confusion and delay. See Michelson v. United States Evidence: Practice Under the Rules Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom The amendment also clarifies that evidence otherwise admissible under Rule 404(a)(2) may nonetheless be excluded in a criminal case involving sexual misconduct. In such a case, the admissibility of evidence of the victims sexual behavior and predisposition is governed by the more stringent provisions of Rule 412. Nothing in the amendment is intended to affect the scope of Rule 404(b). While Rule 404(b) refers to the accused, the prosecution, and a criminal case, it does so only in the context of a notice requirement. The admissibility standards of Rule 404(b) remain fully applicable to both civil and criminal cases. Changes Made After Publication and Comments. Committee Notes on Rules2011 Amendment The language of Rule 404 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Committee Notes on Rules2020 Amendment Rule 404(b) has been amended principally to impose additional notice requirements on the prosecution in a criminal case. In addition, clarifications have been made to the text and headings. The notice provision has been changed in a number of respects:  The prosecution must not only identify the evidence that it intends to offer pursuant to the rule but also articulate a non-propensity purpose for which the evidence is offered and the basis for concluding that the evidence is relevant in light of this purpose. The earlier requirement that the prosecution provide notice of only the general nature of the evidence was understood by some courts to permit the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose. This amendment makes clear what notice is required.  The pretrial notice must be in writingwhich requirement is satisfied by notice in electronic form. See  Notice must be provided before trial in such time as to allow the defendant a fair opportunity to meet the evidence, unless the court excuses that requirement upon a showing of good cause. See See, e.g., United States v. Lopez-Gutierrez United States v. Perez-Tosta  The good cause exception applies not only to the timing of the notice as a whole but also to the timing of the obligations to articulate a non-propensity purpose and the reasoning supporting that purpose. A good cause exception for the timing of the articulation requirements is necessary because in some cases an additional permissible purpose for the evidence may not become clear until just before, or even during, trial.  Finally, the amendment eliminates the requirement that the defendant must make a request before notice is provided. That requirement is not found in any other notice provision in the Federal Rules of Evidence. It has resulted mostly in boilerplate demands on the one hand, and a trap for the unwary on the other. Moreover, many local rules require the government to provide notice of Rule 404(b) material without regard to whether it has been requested. And in many cases, notice is provided when the government moves in limine As to the textual clarifications, the word other is restored to the location it held before restyling in 2011, to confirm that Rule 404(b) applies to crimes, wrongs and acts other than those at issue in the case; and the headings are changed accordingly. No substantive change is intended. Rule 405. Methods of Proving Character (a) By Reputation or Opinion. When evidence of a persons character or character trait is admissible, it may be proved by testimony about the persons reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the persons conduct. (b) By Specific Instances of Conduct. When a persons character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the persons conduct. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1932 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The rule deals only with allowable methods of proving character, not with the admissibility of character evidence, which is covered in Rule 404. Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion. These latter methods are also available when character is in issue. This treatment is, with respect to specific instances of conduct and reputation, conventional contemporary common law doctrine. McCormick  153. In recognizing opinion as a means of proving character, the rule departs from usual contemporary practice in favor of that of an earlier day. See 7 Wigmore  1986, pointing out that the earlier practice permitted opinion and arguing strongly for evidence based on personal knowledge and belief as contrasted with the secondhand, irresponsible product of multiplied guesses and gossip which we term reputation. It seems likely that the persistence of reputation evidence is due to its largely being opinion in disguise. Traditionally character has been regarded primarily in moral overtones of good and bad: chaste, peaceable, truthful, honest. Nevertheless, on occasion nonmoral considerations crop up, as in the case of the incompetent driver, and this seems bound to happen increasingly. If character is defined as the kind of person one is, then account must be taken of varying ways of arriving at the estimate. These may range from the opinion of the employer who has found the man honest to the opinion of the psychiatrist based upon examination and testing. No effective dividing line exists between character and mental capacity, and the latter traditionally has been provable by opinion. According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct pertinent to the trait in question. Michelson v. United States The express allowance of inquiry into specific instances of conduct on cross-examination in subdivision (a) and the express allowance of it as part of a case in chief when character is actually in issue in subdivision (b) contemplate that testimony of specific instances is not generally permissible on the direct examination of an ordinary opinion witness to character. Similarly as to witnesses to the character of witnesses under Rule 608(b). Opinion testimony on direct in these situations ought in general to correspond to reputation testimony as now given, i.e Notes of Committee on the Judiciary, House Report No. 93650 Rule 405(a) as submitted proposed to change existing law by allowing evidence of character in the form of opinion as well as reputation testimony. Fearing, among other reasons, that wholesale allowance of opinion testimony might tend to turn a trial into a swearing contest between conflicting character witnesses, the Committee decided to delete from this Rule, as well as from Rule 608(a) which involves a related problem, reference to opinion testimony. Notes of Conference Committee, House Report No. 931597 The Senate makes two language changes in the nature of conforming amendments. The Conference adopts the Senate amendments. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 405 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 406. Habit; Routine Practice  Evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1932 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules An oft-quoted paragraph, McCormick,  162, p. 340, describes habit in terms effectively contrasting it with character:  Character and habit are close akin. Character is a generalized description of ones disposition, or of ones disposition in respect to a general trait, such as honesty, temperance, or peacefulness. Habit, in modern usage, both lay and psychological, is more specific. It describes ones regular response to a repeated specific situation. If we speak of character for care, we think of the persons tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the persons regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic. Agreement is general that habit evidence is highly persuasive as proof of conduct on a particular occasion. Again quoting McCormick  162, p. 341: Character may be thought of as the sum of ones habits though doubtless it is more than this. But unquestionably the uniformity of ones response to habit is far greater than the consistency with which ones conduct conforms to character or disposition. Even though character comes in only exceptionally as evidence of an act, surely any sensible man in investigating whether X did a particular act would be greatly helped in his inquiry by evidence as to whether he was in the habit of doing it. When disagreement has appeared, its focus has been upon the question what constitutes habit, and the reason for this is readily apparent. The extent to which instances must be multiplied and consistency of behavior maintained in order to rise to the status of habit inevitably gives rise to differences of opinion. Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39, 49 (1964). While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated. The rule is consistent with prevailing views. Much evidence is excluded simply because of failure to achieve the status of habit. Thus, evidence of intemperate habits is generally excluded when offered as proof of drunkenness in accident cases, Annot., 46 A.L.R.2d 103, and evidence of other assaults is inadmissible to prove the instant one in a civil assault action, Annot., 66 A.L.R.2d 806. In Levin v. United States It seems apparent to us that an individuals religious practices would not be the type of activities which would lend themselves to the characterization of invariable regularity. [1 Wigmore 520.] Certainly the very volitional basis of the activity raises serious questions as to its invariable nature, and hence its probative value. Id These rulings are not inconsistent with the trend towards admitting evidence of business transactions between one of the parties and a third person as tending to prove that he made the same bargain or proposal in the litigated situation. Slough, Relevancy Unraveled, 6 Kan.L.Rev. 3841 (1957). Nor are they inconsistent with such cases as Whittemore v. Lockheed Aircraft Corp A considerable body of authority has required that evidence of the routine practice of an organization be corroborated as a condition precedent to its admission in evidence. Slough, Relevancy Unraveled, 5 Kan.L.Rev. 404, 449 (1957). This requirement is specifically rejected by the rule on the ground that it relates to the sufficiency of the evidence rather than admissibility. A similar position is taken in New Jersey Rule 49. The rule also rejects the requirement of the absence of eyewitnesses, sometimes encountered with respect to admitting habit evidence to prove freedom from contributory negligence in wrongful death cases. For comment critical of the requirements see Frank, J., in Cereste v. New York, N.H. & H.R. Co Committee Notes on Rules2011 Amendment The language of Rule 406 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 407. Subsequent Remedial Measures  When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:  negligence;  culpable conduct;  a defect in a product or its design; or  a need for a warning or instruction. But the court may admit this evidence for another purpose, such as impeachment orif disputedproving ownership, control, or the feasibility of precautionary measures. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1932 Apr. 11, 1997 Dec. 1, 1997 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The rule incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. Or, as Baron Bramwell put it, the rule rejects the notion that because the world gets wiser as it gets older, therefore it was foolish before. Hart v. Lancashire & Yorkshire Ry. Co The second sentence of the rule directs attention to the limitations of the rule. Exclusion is called for only when the evidence of subsequent remedial measures is offered as proof of negligence or culpable conduct. In effect it rejects the suggested inference that fault is admitted. Other purposes are, however, allowable, including ownership or control, existence of duty, and feasibility of precautionary measures, if controverted, and impeachment. 2 Wigmore  283; Annot., 64 A.L.R.2d 1296. Two recent federal cases are illustrative. Boeing Airplane Co. v. Brown Powers v. J. B. Michael & Co For comparable rules, see Uniform Rule 51; California Evidence Code  1151; Kansas Code of Civil Procedure  60451; New Jersey Evidence Rule 51. Notes of Advisory Committee on Rules1997 Amendment The amendment to Rule 407 makes two changes in the rule. First, the words an injury or harm allegedly caused by were added to clarify that the rule applies only to changes made after the occurrence that produced the damages giving rise to the action. Evidence of measures taken by the defendant prior to the event causing injury or harm do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product. See Chase v. General Motors Corp. Second, Rule 407 has been amended to provide that evidence of subsequent remedial measures may not be used to prove a defect in a product or its design, or that a warning or instruction should have accompanied a product. This amendment adopts the view of a majority of the circuits that have interpreted Rule 407 to apply to products liability actions. See Raymond v. Raymond Corp In re Joint Eastern District and Southern District Asbestos Litigation v. Armstrong World Industries, Inc. Cann v. Ford Motor Co. cert. denied Kelly v. Crown Equipment Co. Werner v. Upjohn, Inc. cert. denied Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc. Bauman v. Volkswagenwerk Aktiengesellschaft Flaminio v. Honda Motor Company, Ltd. Gauthier v. AMF, Inc. Although this amendment adopts a uniform federal rule, it should be noted that evidence of subsequent remedial measures may be admissible pursuant to the second sentence of Rule 407. Evidence of subsequent measures that is not barred by Rule 407 may still be subject to exclusion on Rule 403 grounds when the dangers of prejudice or confusion substantially outweigh the probative value of the evidence. GAP Report on Rule 407 Committee Notes on Rules2011 Amendment The language of Rule 407 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 407 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc. Rule 408. Compromise Offers and Negotiations (a) Prohibited Uses. Evidence of the following is not admissibleon behalf of any partyeither to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offeringor accepting, promising to accept, or offering to accepta valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claimexcept when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witnesss bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1933 Apr. 12, 2006 Dec. 1, 2006 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules As a matter of general agreement, evidence of an offer-to compromise a claim is not receivable in evidence as an admission of, as the case may be, the validity or invalidity of the claim. As with evidence of subsequent remedial measures, dealt with in Rule 407, exclusion may be based on two grounds. (1) The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position. The validity of this position will vary as the amount of the offer varies in relation to the size of the claim and may also be influenced by other circumstances. (2) a more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes. McCormick  76, 251. While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto. This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person. The same policy underlies the provision of Rule 68 of the Federal Rules of Civil Procedure that evidence of an unaccepted offer of judgment is not admissible except in a proceeding to determine costs. The practical value of the common law rule has been greatly diminished by its inapplicability to admissions of fact, even though made in the course of compromise negotiations, unless hypothetical, stated to be without prejudice, or so connected with the offer as to be inseparable from it. McCormick  251, pp. 540541. An inevitable effect is to inhibit freedom of communication with respect to compromise, even among lawyers. Another effect is the generation of controversy over whether a given statement falls within or without the protected area. These considerations account for the expansion of the rule herewith to include evidence of conduct or statements made in compromise negotiations, as well as the offer or completed compromise itself. For similar provisions see California Evidence Code  1152, 1154. The policy considerations which underlie the rule do not come into play when the effort is to induce a creditor to settle an admittedly due amount for a lessor sum. McCormick  251, p. 540. Hence the rule requires that the claim be disputed as to either validity or amount. The final sentence of the rule serves to point out some limitations upon its applicability. Since the rule excludes only when the purpose is proving the validity or invalidity of the claim or its amount, an offer for another purpose is not within the rule. The illustrative situations mentioned in the rule are supported by the authorities. As to proving bias or prejudice of a witness, see Annot., 161 A.L.R. 395, contra, Fenberg v. Rosenthal For other rules of similar import, see Uniform Rules 52 and 53; California Evidence Code  1152, 1154; Kansas Code of Civil Procedure  60452, 60453; New Jersey Evidence Rules 52 and 53. Notes of Committee on the Judiciary, House Report No. 93650 Under existing federal law evidence of conduct and statements made in compromise negotiations is admissible in subsequent litigation between the parties. The second sentence of Rule 408 as submitted by the Supreme Court proposed to reverse that doctrine in the interest of further promoting non-judicial settlement of disputes. Some agencies of government expressed the view that the Court formulation was likely to impede rather than assist efforts to achieve settlement of disputes. For one thing, it is not always easy to tell when compromise negotiations begin, and informal dealings end. Also, parties dealing with government agencies would be reluctant to furnish factual information at preliminary meetings; they would wait until compromise negotiations began and thus hopefully effect an immunity for themselves with respect to the evidence supplied. In light of these considerations, the Committee recast the Rule so that admissions of liability or opinions given during compromise negotiations continue inadmissible, but evidence of unqualified factual assertions is admissible. The latter aspect of the Rule is drafted, however, so as to preserve other possible objections to the introduction of such evidence. The Committee intends no modification of current law whereby a party may protect himself from future use of his statements by couching them in hypothetical conditional form. Notes of Committee on the Judiciary, Senate Report No. 931277 This rule as reported makes evidence of settlement or attempted settlement of a disputed claim inadmissible when offered as an admission of liability or the amount of liability. The purpose of this rule is to encourage settlements which would be discouraged if such evidence were admissible. Under present law, in most jurisdictions, statements of fact made during settlement negotiations, however, are excepted from this ban and are admissible. The only escape from admissibility of statements of fact made in a settlement negotiation is if the declarant or his representative expressly states that the statement is hypothetical in nature or is made without prejudice. Rule 408 as submitted by the Court reversed the traditional rule. It would have brought statements of fact within the ban and made them, as well as an offer of settlement, inadmissible. The House amended the rule and would continue to make evidence of facts disclosed during compromise negotiations admissible. It thus reverted to the traditional rule. The House committee report states that the committee intends to preserve current law under which a party may protect himself by couching his statements in hypothetical form [See House Report No. 93650 above]. The real impact of this amendment, however, is to deprive the rule of much of its salutary effect. The exception for factual admissions was believed by the Advisory Committee to hamper free communication between parties and thus to constitute an unjustifiable restraint upon efforts to negotiate settlementsthe encouragement of which is the purpose of the rule. Further, by protecting hypothetically phrased statements, it constituted a preference for the sophisticated, and a trap for the unwary. Three States which had adopted rules of evidence patterned after the proposed rules prescribed by the Supreme Court opted for versions of rule 408 identical with the Supreme Court draft with respect to the inadmissibility of conduct or statements made in compromise negotiations. [Nev. Rev. Stats.  48.105; N. Mex. Stats. Anno. (1973 Supp.)  204408; Wests Wis. Stats. Anno. (1973 Supp.)  904.08]. For these reasons, the committee has deleted the House amendment and restored the rule to the version submitted by the Supreme Court with one additional amendment. This amendment adds a sentence to insure that evidence, such as documents, is not rendered inadmissible merely because it is presented in the course of compromise negotiations if the evidence is otherwise discoverable. A party should not be able to immunize from admissibility documents otherwise discoverable merely by offering them in a compromise negotiation. Notes of Conference Committee, House Report No. 931597 The House bill provides that evidence of admissions of liability or opinions given during compromise negotiations is not admissible, but that evidence of facts disclosed during compromise negotiations is not inadmissible by virtue of having been first disclosed in the compromise negotiations. The Senate amendment provides that evidence of conduct or statements made in compromise negotiations is not admissible. The Senate amendment also provides that the rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. The House bill was drafted to meet the objection of executive agencies that under the rule as proposed by the Supreme Court, a party could present a fact during compromise negotiations and thereby prevent an opposing party from offering evidence of that fact at trial even though such evidence was obtained from independent sources. The Senate amendment expressly precludes this result. The Conference adopts the Senate amendment. Committee Notes on Rules2006 Amendment Rule 408 has been amended to settle some questions in the courts about the scope of the Rule, and to make it easier to read. First, the amendment provides that Rule 408 does not prohibit the introduction in a criminal case of statements or conduct during compromise negotiations regarding a civil dispute by a government regulatory, investigative, or enforcement agency. See, e.g., United States v. Prewitt Statements made in compromise negotiations of a claim by a government agency may be excluded in criminal cases where the circumstances so warrant under Rule 403. For example, if an individual was unrepresented at the time the statement was made in a civil enforcement proceeding, its probative value in a subsequent criminal case may be minimal. But there is no absolute exclusion imposed by Rule 408. In contrast, statements made during compromise negotiations of other disputed claims are not admissible in subsequent criminal litigation, when offered to prove liability for, invalidity of, or amount of those claims. When private parties enter into compromise negotiations they cannot protect against the subsequent use of statements in criminal cases by way of private ordering. The inability to guarantee protection against subsequent use could lead to parties refusing to admit fault, even if by doing so they could favorably settle the private matter. Such a chill on settlement negotiations would be contrary to the policy of Rule 408. The amendment distinguishes statements and conduct (such as a direct admission of fault) made in compromise negotiations of a civil claim by a government agency from an offer or acceptance of a compromise of such a claim. An offer or acceptance of a compromise of any civil claim is excluded under the Rule if offered against the defendant as an admission of fault. In that case, the predicate for the evidence would be that the defendant, by compromising with the government agency, has admitted the validity and amount of the civil claim, and that this admission has sufficient probative value to be considered as evidence of guilt. But unlike a direct statement of fault, an offer or acceptance of a compromise is not very probative of the defendants guilt. Moreover, admitting such an offer or acceptance could deter a defendant from settling a civil regulatory action, for fear of evidentiary use in a subsequent criminal action. See, e.g. Jones on Evidence, Civil and Criminal The amendment retains the language of the original rule that bars compromise evidence only when offered as evidence of the validity, invalidity, or amount of the disputed claim. The intent is to retain the extensive case law finding Rule 408 inapplicable when compromise evidence is offered for a purpose other than to prove the validity, invalidity, or amount of a disputed claim. See, e.g., Athey v. Farmers Ins. Exchange Coakley & Williams v. Structural Concrete Equip. Cates v. Morgan Portable Bldg. Corp. Uforma/Shelby Bus. Forms, Inc. v. NLRB The amendment does not affect the case law providing that Rule 408 is inapplicable when evidence of the compromise is offered to prove notice. See, e.g., United States v. Austin Spell v. McDaniel The amendment prohibits the use of statements made in settlement negotiations when offered to impeach by prior inconsistent statement or through contradiction. Such broad impeachment would tend to swallow the exclusionary rule and would impair the public policy of promoting settlements. See McCormick on Evidence See also EEOC v. Gear Petroleum, Inc. The amendment makes clear that Rule 408 excludes compromise evidence even when a party seeks to admit its own settlement offer or statements made in settlement negotiations. If a party were to reveal its own statement or offer, this could itself reveal the fact that the adversary entered into settlement negotiations. The protections of Rule 408 cannot be waived unilaterally because the Rule, by definition, protects both parties from having the fact of negotiation disclosed to the jury. Moreover, proof of statements and offers made in settlement would often have to be made through the testimony of attorneys, leading to the risks and costs of disqualification. See generally Pierce v. F.R. Tripler & Co. The sentence of the Rule referring to evidence otherwise discoverable has been deleted as superfluous. See, e.g. See Ramada Development Co. v. Rauch Changes Made After Publication and Comments Committee Notes on Rules2011 Amendment The language of Rule 408 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 408 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc. The Committee deleted the reference to liability on the ground that the deletion makes the Rule flow better and easier to read, and because liability is covered by the broader term validity. Courts have not made substantive decisions on the basis of any distinction between validity and liability. No change in current practice or in the coverage of the Rule is intended. Rule 409. Offers to Pay Medical and Similar Expenses  Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1933 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The considerations underlying this rule parallel those underlying Rules 407 and 408, which deal respectively with subsequent remedial measures and offers of compromise. As stated in Annot., 20 A.L.R.2d 291, 293: [G]enerally, evidence of payment of medical, hospital, or similar expenses of an injured party by the opposing party, is not admissible, the reason often given being that such payment or offer is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person. Contrary to Rule 408, dealing with offers of compromise, the present rule does not extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. This difference in treatment arises from fundamental differences in nature. Communication is essential if compromises are to be effected, and consequently broad protection of statements is needed. This is not so in cases of payments or offers or promises to pay medical expenses, where factual statements may be expected to be incidental in nature. For rules on the same subject, but phrased in terms of humanitarian motives, see Uniform Rule 52; California Evidence Code  1152; Kansas Code of Civil Procedure  60452; New Jersey Evidence Rule 52. Committee Notes on Rules2011 Amendment The language of Rule 409 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 410. Pleas, Plea Discussions, and Related Statements (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1933 Pub. L. 94149,  1(9) Dec. 12, 1975 89 Stat. 805 Apr. 30, 1979 Dec. 1, 1980 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Withdrawn pleas of guilty were held inadmissible in federal prosecutions in Kercheval v. United States People v. Spitaleri Pleas of nolo contendere nolo nolo General Electric Co. v. City of San Antonio Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co Armco Steel Corp. v. North Dakota City of Burbank v. General Electric Co Exclusion of offers to plead guilty or nolo Effective criminal law administration in many localities would hardly be possible if a large proportion of the charges were not disposed of by such compromises. See also People v. Hamilton Limiting the exclusionary rule to use against the accused is consistent with the purpose of the rule, since the possibility of use for or against other persons will not impair the effectiveness of withdrawing pleas or the freedom of discussion which the rule is designed to foster. See A.B.A. Standards Relating to Pleas of Guilty  2.2 (1968). See also the narrower provisions of New Jersey Evidence Rule 52(2) and the unlimited exclusion provided in California Evidence Code  1153. Notes of Committee on the Judiciary, House Report No. 93650 The Committee added the phrase Except as otherwise provided by Act of Congress to Rule 410 as submitted by the Court in order to preserve particular congressional policy judgments as to the effect of a plea of guilty or of nolo contendere. See 15 U.S.C. 16(a) Notes of the Committee on the Judiciary, Senate Report No. 931277 As adopted by the House, rule 410 would make inadmissible pleas of guilty or nolo contendere subsequently withdrawn as well as offers to make such pleas. Such a rule is clearly justified as a means of encouraging pleading. However, the House rule would then go on to render inadmissible for any purpose statements made in connection with these pleas or offers as well. The committee finds this aspect of the House rule unjustified. Of course, in certain circumstances such statements should be excluded. If, for example, a plea is vitiated because of coercion, statements made in connection with the plea may also have been coerced and should be inadmissible on that basis. In other cases, however, voluntary statements of an accused made in court on the record, in connection with a plea, and determined by a court to be reliable should be admissible even though the plea is subsequently withdrawn. This is particularly true in those cases where, if the House rule were in effect, a defendant would be able to contradict his previous statements and thereby lie with impunity [See Harris v. New York Notes of Conference Committee, House Report No. 931597 The House bill provides that evidence of a guilty or nolo contendere plea, of an offer of either plea, or of statements made in connection with such pleas or offers of such pleas, is inadmissible in any civil or criminal action, case or proceeding against the person making such plea or offer. The Senate amendment makes the rule inapplicable to a voluntary and reliable statement made in court on the record where the statement is offered in a subsequent prosecution of the declarant for perjury or false statement. The issues raised by Rule 410 are also raised by proposed Rule 11(e)(6) of the Federal Rules of Criminal Procedure presently pending before Congress. This proposed rule, which deals with the admissibility of pleas of guilty or nolo contendere, offers to make such pleas, and statements made in connection with such pleas, was promulgated by the Supreme Court on April 22, 1974 August 1, 1975 The Conferees further determined that the issues presented by the use of guilty and nolo contendere pleas, offers of such pleas, and statements made in connection with such pleas or offers, can be explored in greater detail during Congressional consideration of Rule 11(e)(6) of the Federal Rules of Criminal Procedure. The Conferees believe, therefore, that it is best to defer its effective date until August 1, 1975 The conference adopts the Senate amendment with an amendment that expresses the above intentions. Notes of Advisory Committee on Rules1979 Amendment Present rule 410 conforms to rule 11(e)(6) of the Federal Rules of Criminal Procedure. A proposed amendment to rule 11(e)(6) would clarify the circumstances in which pleas, plea discussions and related statements are inadmissible in evidence; see Advisory Committee Note thereto. The amendment proposed above would make comparable changes in rule 410. Committee Notes on Rules2011 Amendment The language of Rule 410 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Amendment by Public Law 1975 Pub. L. 94149 August 1, 1975 Effective Date of 1979 Amendment Pub. L. 9642 July 31, 1979 93 Stat. 326 Apr. 30, 1979 Aug. 1, 1979 Dec. 1, 1980 Rule 411. Liability Insurance  Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witnesss bias or prejudice or proving agency, ownership, or control. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1933 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The courts have with substantial unanimity rejected evidence of liability insurance for the purpose of proving fault, and absence of liability insurance as proof of lack of fault. At best the inference of fault from the fact of insurance coverage is a tenuous one, as is its converse. More important, no doubt, has been the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds. McCormick  168; Annot., 4 A.L.R.2d 761. The rule is drafted in broad terms so as to include contributory negligence or other fault of a plaintiff as well as fault of a defendant. The second sentence points out the limits of the rule, using well established illustrations. Id. For similar rules see Uniform Rule 54; California Evidence Code  1155; Kansas Code of Civil Procedure  60454; New Jersey Evidence Rule 54. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 411 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 411 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc. Rule 412. Sex-Offense Cases: The Victims Sexual Behavior or Predisposition (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victims sexual predisposition. (b) Exceptions. (1)  Criminal Cases. (A) evidence of specific instances of a victims sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victims sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendants constitutional rights. (2)  Civil Cases. (c) Procedure to Determine Admissibility. (1)  Motion. (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the victim or, when appropriate, the victims guardian or representative. (2)  Hearing. (d) Definition of Victim. In this rule, victim includes an alleged victim. (Added Pub. L. 95540,  2(a) Oct. 28, 1978 92 Stat. 2046 Pub. L. 100690, title VII,  7046(a) Nov. 18, 1988 102 Stat. 4400 Apr. 29, 1994 Dec. 1, 1994 Pub. L. 103322, title IV,  40141(b) Sept. 13, 1994 108 Stat. 1919 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Rules1994 Amendment Rule 412 has been revised to diminish some of the confusion engendered by the original rule and to expand the protection afforded alleged victims of sexual misconduct. Rule 412 applies to both civil and criminal proceedings. The rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders. Rule 412 seeks to achieve these objectives by barring evidence relating to the alleged victims sexual behavior or alleged sexual predisposition, whether offered as substantive evidence or for impeachment, except in designated circumstances in which the probative value of the evidence significantly outweighs possible harm to the victim. The revised rule applies in all cases involving sexual misconduct without regard to whether the alleged victim or person accused is a party to the litigation. Rule 412 extends to pattern witnesses in both criminal and civil cases whose testimony about other instances of sexual misconduct by the person accused is otherwise admissible. When the case does not involve alleged sexual misconduct, evidence relating to a third-party witness alleged sexual activities is not within the ambit of Rule 412. The witness will, however, be protected by other rules such as Rules 404 and 608, as well as Rule 403. The terminology alleged victim is used because there will frequently be a factual dispute as to whether sexual misconduct occurred. It does not connote any requirement that the misconduct be alleged in the pleadings. Rule 412 does not, however, apply unless the person against whom the evidence is offered can reasonably be characterized as a victim of alleged sexual misconduct. When this is not the case, as for instance in a defamation action involving statements concerning sexual misconduct in which the evidence is offered to show that the alleged defamatory statements were true or did not damage the plaintiffs reputation, neither Rule 404 nor this rule will operate to bar the evidence; Rule 401 and 403 will continue to control. Rule 412 will, however, apply in a Title VII action in which the plaintiff has alleged sexual harassment. The reference to a person accused is also used in a non-technical sense. There is no requirement that there be a criminal charge pending against the person or even that the misconduct would constitute a criminal offense. Evidence offered to prove allegedly false prior claims by the victim is not barred by Rule 412. However, this evidence is subject to the requirements of Rule 404. Subdivision (a) Cf Past sexual behavior connotes all activities that involve actual physical conduct, i.e. sexual intercourse and sexual contact, or that imply sexual intercourse or sexual contact. See, e.g., United States v. Galloway cert. denied United States v. One Feather State v. Carmichael See Federal Practice and Procedure The rule has been amended to also exclude all other evidence relating to an alleged victim of sexual misconduct that is offered to prove a sexual predisposition. This amendment is designed to exclude evidence that does not directly refer to sexual activities or thoughts but that the proponent believes may have a sexual connotation for the factfinder. Admission of such evidence would contravene Rule 412s objectives of shielding the alleged victim from potential embarrassment and safeguarding the victim against stereotypical thinking. Consequently, unless the (b)(2) exception is satisfied, evidence such as that relating to the alleged victims mode of dress, speech, or life-style will not be admissible. The introductory phrase in subdivision (a) was deleted because it lacked clarity and contained no explicit reference to the other provisions of law that were intended to be overridden. The conditional clause, except as provided in subdivisions (b) and (c) is intended to make clear that evidence of the types described in subdivision (a) is admissible only under the strictures of those sections. The reason for extending the rule to all criminal cases is obvious. The strong social policy of protecting a victims privacy and encouraging victims to come forward to report criminal acts is not confined to cases that involve a charge of sexual assault. The need to protect the victim is equally great when a defendant is charged with kidnapping, and evidence is offered, either to prove motive or as background, that the defendant sexually assaulted the victim. The reason for extending Rule 412 to civil cases is equally obvious. The need to protect alleged victims against invasions of privacy, potential embarrassment, and unwarranted sexual stereotyping, and the wish to encourage victims to come forward when they have been sexually molested do not disappear because the context has shifted from a criminal prosecution to a claim for damages or injunctive relief. There is a strong social policy in not only punishing those who engage in sexual misconduct, but in also providing relief to the victim. Thus, Rule 412 applies in any civil case in which a person claims to be the victim of sexual misconduct, such as actions for sexual battery or sexual harassment. Subdivision (b) In a criminal case, evidence may be admitted under subdivision (b)(1) pursuant to three possible exceptions, provided the evidence also satisfies other requirements for admissibility specified in the Federal Rules of Evidence, including Rule 403. Subdivisions (b)(1)(A) and (b)(1)(B) require proof in the form of specific instances of sexual behavior in recognition of the limited probative value and dubious reliability of evidence of reputation or evidence in the form of an opinion. Under subdivision (b)(1)(A), evidence of specific instances of sexual behavior with persons other than the person whose sexual misconduct is alleged may be admissible if it is offered to prove that another person was the source of semen, injury or other physical evidence. Where the prosecution has directly or indirectly asserted that the physical evidence originated with the accused, the defendant must be afforded an opportunity to prove that another person was responsible. See United States v. Begay See, e.g., United States v. Azure Under the exception in subdivision (b)(1)(B), evidence of specific instances of sexual behavior with respect to the person whose sexual misconduct is alleged is admissible if offered to prove consent, or offered by the prosecution. Admissible pursuant to this exception might be evidence of prior instances of sexual activities between the alleged victim and the accused, as well as statements in which the alleged victim expressed an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specific accused. In a prosection [sic] for child sexual abuse, for example, evidence of uncharged sexual activity between the accused and the alleged victim offered by the prosecution may be admissible pursuant to Rule 404(b) to show a pattern of behavior. Evidence relating to the victims alleged sexual predisposition is not admissible pursuant to this exception. Under subdivision (b)(1)(C), evidence of specific instances of conduct may not be excluded if the result would be to deny a criminal defendant the protections afforded by the Constitution. For example, statements in which the victim has expressed an intent to have sex with the first person encountered on a particular occasion might not be excluded without violating the due process right of a rape defendant seeking to prove consent. Recognition of this basic principle was expressed in subdivision (b)(1) of the original rule. The United States Supreme Court has recognized that in various circumstances a defendant may have a right to introduce evidence otherwise precluded by an evidence rule under the Confrontation Clause. See, e.g., Olden v. Kentucky Subdivision (b)(2) governs the admissibility of otherwise proscribed evidence in civil cases. It employs a balancing test rather than the specific exceptions stated in subdivision (b)(1) in recognition of the difficulty of foreseeing future developments in the law. Greater flexibility is needed to accommodate evolving causes of action such as claims for sexual harassment. The balancing test requires the proponent of the evidence, whether plaintiff or defendant, to convince the court that the probative value of the proffered evidence substantially outweighs the danger of harm to any victim and of unfair prejudice of any party. This test for admitting evidence offered to prove sexual behavior or sexual propensity in civil cases differs in three respects from the general rule governing admissibility set forth in Rule 403. First, it reverses the usual procedure spelled out in Rule 403 by shifting the burden to the proponent to demonstrate admissibility rather than making the opponent justify exclusion of the evidence. Second, the standard expressed in subdivision (b)(2) is more stringent than in the original rule; it raises the threshold for admission by requiring that the probative value of the evidence substantially Evidence of reputation may be received in a civil case only if the alleged victim has put his or her reputation into controversy. The victim may do so without making a specific allegation in a pleading. Cf Subdivision (c) The amended rule provides that before admitting evidence that falls within the prohibition of Rule 412(a), the court must hold a hearing in camera at which the alleged victim and any party must be afforded the right to be present and an opportunity to be heard. All papers connected with the motion and any record of a hearing on the motion must be kept and remain under seal during the course of trial and appellate proceedings unless otherwise ordered. This is to assure that the privacy of the alleged victim is preserved in all cases in which the court rules that proffered evidence is not admissible, and in which the hearing refers to matters that are not received, or are received in another form. The procedures set forth in subdivision (c) do not apply to discovery of a victims past sexual conduct or predisposition in civil cases, which will be continued to be governed by Fed.R.Civ.P. 26. In order not to undermine the rationale of Rule 412, however, courts should enter appropriate orders pursuant to Fed.R.Civ.P. 26(c) to protect the victim against unwarranted inquiries and to ensure confidentiality. Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery. In an action for sexual harassment, for instance, while some evidence of the alleged victims sexual behavior and/or predisposition in the workplace may perhaps be relevant, non-work place conduct will usually be irrelevant. Cf. Burns v. McGregor Electronic Industries, Inc One substantive change made in subdivision (c) is the elimination of the following sentence: Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue. On its face, this language would appear to authorize a trial judge to exclude evidence of past sexual conduct between an alleged victim and an accused or a defendant in a civil case based upon the judges belief that such past acts did not occur. Such an authorization raises questions of invasion of the right to a jury trial under the Sixth and Seventh Amendments. See Federal Rules Of Evidence Manual The Advisory Committee concluded that the amended rule provided adequate protection for all persons claiming to be the victims of sexual misconduct, and that it was inadvisable to continue to include a provision in the rule that has been confusing and that raises substantial constitutional issues. [The Supreme Court withheld that portion of the proposed amendment to Rule 412 transmitted to the Court by the Judicial Conference of the United States which would apply that Rule to civil cases. This Note was not revised to account for the Courts action, because the Note is the commentary of the advisory committee. The proposed amendment to Rule 412 was subsequently amended by section 40141(b) of Pub. L. 103322 Committee Notes on Rules2011 Amendment The language of Rule 412 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Congressional Modification of Proposed 1994 Amendment Section 40141(a) of Pub. L. 103322 section 2074 of this title Apr. 29, 1994 Dec. 1, 1994 section 40141(b) of Pub. L. 103322 Amendment by Public Law 1994 Pub. L. 103322 1988 Pub. L. 100690,  7046(a)(1) Subd. (a). Pub. L. 100690,  7046(a)(2) Subd. (b). Pub. L. 100690,  7046(a)(2) Subds. (c)(1), (d). Pub. L. 100690,  7046(a)(4) Effective Date Pub. L. 95540,  3 Oct. 28, 1978 92 Stat. 2047 The amendments made by this Act [enacting this rule] shall apply to trials which begin more than thirty days after the date of the enactment of this Act [ Oct. 28, 1978 Rule 413. Similar Crimes in Sexual-Assault Cases (a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. (d) Definition of Sexual Assault. In this rule and Rule 415, sexual assault means a crime under federal law or under state law (as state is defined in 18 U.S.C.  513) involving: (1) any conduct prohibited by 18 U.S.C. chapter 109A; (2) contact, without consent, between any part of the defendants bodyor an objectand another persons genitals or anus; (3) contact, without consent, between the defendants genitals or anus and any part of another persons body; (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)(4). (Added Pub. L. 103322, title XXXII,  320935(a) Sept. 13, 1994 108 Stat. 2135 Apr. 26, 2011 Dec. 1, 2011  Committee Notes on Rules2011 Amendment The language of Rule 413 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Effective Date Pub. L. 103322, title XXXII,  320935(b) Sept. 13, 1994 108 Stat. 2137 Pub. L. 104208, div. A, title I,  101(a) Sept. 30, 1996 110 Stat. 3009  (b)  Implementation The amendments made by subsection (a) [enacting this rule and rules 414 and 415 of these rules] shall become effective pursuant to subsection (d). (c)  Recommendations by Judicial Conference Not later than 150 days after the date of enactment of this Act [ Sept. 13, 1994 28 U.S.C. 2072 (d)  Congressional Action. (1) If the recommendations described in subsection (c) are the same as the amendment made by subsection (a), then the amendments made by subsection (a) shall become effective 30 days after the transmittal of the recommendations. (2) If the recommendations described in subsection (c) are different than the amendments made by subsection (a), the amendments made by subsection (a) shall become effective 150 days after the transmittal of the recommendations unless otherwise provided by law. (3) If the Judicial Conference fails to comply with subsection (c), the amendments made by subsection (a) shall become effective 150 days after the date the recommendations were due under subsection (c) unless otherwise provided by law. (e)  Application The amendments made by subsection (a) shall apply to proceedings commenced on or after the effective date of such amendments [ July 9, 1995 [The Judicial Conference transmitted to Congress on Feb. 9, 1995 July 9, 1995 Rule 414. Similar Crimes in Child-Molestation Cases (a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. (d) Definition of Child and Child Molestation. In this rule and Rule 415: (1) child means a person below the age of 14; and (2) child molestation means a crime under federal law or under state law (as state is defined in 18 U.S.C.  513) involving: (A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child; (B) any conduct prohibited by 18 U.S.C. chapter 110; (C) contact between any part of the defendants bodyor an objectand a childs genitals or anus; (D) contact between the defendants genitals or anus and any part of a childs body; (E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or (F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)(E). (Added Pub. L. 103322, title XXXII,  320935(a) Sept. 13, 1994 108 Stat. 2136 Apr. 26, 2011 Dec. 1, 2011  Committee Notes on Rules2011 Amendment The language of Rule 414 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Effective Date Rule effective July 9, 1995 Pub. L. 103322 Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation (a) Permitted Uses. In a civil case involving a claim for relief based on a partys alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. (b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. (Added Pub. L. 103322, title XXXII,  320935(a) Sept. 13, 1994 108 Stat. 2137 Apr. 26, 2011 Dec. 1, 2011  Committee Notes on Rules2011 Amendment The language of Rule 415 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Effective Date Rule effective July 9, 1995 Pub. L. 103322 ARTICLE V. PRIVILEGES Rule 501. Privilege in General  The common lawas interpreted by United States courts in the light of reason and experiencegoverns a claim of privilege unless any of the following provides otherwise:  the United States Constitution;  a federal statute; or  rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1933 Apr. 26, 2011 Dec. 1, 2011  Notes of Committee on the Judiciary, House Report No. 93650 Article V as submitted to Congress contained thirteen Rules. Nine of those Rules defined specific non-constitutional privileges which the federal courts must recognize (i.e. required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state and other official information, and identity of informer). Another Rule provided that only those privileges set forth in Article V or in some other Act of Congress could be recognized by the federal courts. The three remaining Rules addressed collateral problems as to waiver of privilege by voluntary disclosure, privileged matter disclosed under compulsion or without opportunity to claim privilege, comment upon or inference from a claim of privilege, and jury instruction with regard thereto. The Committee amended Article V to eliminate all of the Courts specific Rules on privileges. Instead, the Committee, through a single Rule, 501, left the law of privileges in its present state and further provided that privileges shall continue to be developed by the courts of the United States under a uniform standard applicable both in civil and criminal cases. That standard, derived from Rule 26 of the Federal Rules of Criminal Procedure, mandates the application of the principles of the common law as interpreted by the Courts of the United States in the light of reason and experience. The words person, government, State, or political subdivision thereof were added by the Committee to the lone term witness used in Rule 26 to make clear that, as under present law, not only witnesses may have privileges. The Committee also included in its amendment a proviso modeled after Rule 302 and similar to language added by the Committee to Rule 601 relating to the competency of witnesses. The proviso is designed to require the application of State privilege law in civil actions and proceedings governed by Erie R. Co. v. Tompkins Republic Gear Co. v. Borg-Warner Corp Erie. The rationale underlying the proviso is that federal law should not supersede that of the States in substantive areas such as privilege absent a compelling reason. The Committee believes that in civil cases in the federal courts where an element of a claim or defense is not grounded upon a federal question, there is no federal interest strong enough to justify departure from State policy. In addition, the Committee considered that the Courts proposed Article V would have promoted forum shopping in some civil actions, depending upon differences in the privilege law applied as among the State and federal courts. The Committees proviso, on the other hand, under which the federal courts are bound to apply the States privilege law in actions founded upon a State-created right or defense removes the incentive to shop. Notes of Committee on the Judiciary, Senate Report No. 931277 Article V as submitted to Congress contained 13 rules. Nine of those rules defined specific nonconstitutional privileges which the Federal courts must recognize (i.e., required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state and other official information, and identity of informer). Many of these rules contained controversial modifications or restrictions upon common law privileges. As noted supra, the House amended article V to eliminate all of the Courts specific rules on privileges. Through a single rule, 501, the House provided that privileges shall be governed by the principles of the common law as interpreted by the courts of the United States in the light of reason and experience (a standard derived from rule 26 of the Federal Rules of Criminal Procedure) except in the case of an element of a civil claim or defense as to which State law supplies the rule of decision, in which event state privilege law was to govern. The committee agrees with the main thrust of the House amendment: that a federally developed common law based on modern reason and experience shall apply except where the State nature of the issues renders deference to State privilege law the wiser course, as in the usual diversity case. The committee understands that thrust of the House amendment to require that State privilege law be applied in diversity cases (actions on questions of State law between citizens of different States arising under 28 U.S.C.  1332). The language of the House amendment, however, goes beyond this in some respects, and falls short of it in others: State privilege law applies even in nondiversity. Federal question civil cases, where an issue governed by State substantive law is the object of the evidence (such issues do sometimes arise in such cases); and, in all instances where State privilege law is to be applied, e.g., on proof of a State issue in a diversity case, a close reading reveals that State privilege law is not to be applied unless the matter to be proved is an element of that state claim or defense, as distinguished from a step along the way in the proof of it. The committee is concerned that the language used in the House amendment could be difficult to apply. It provides that in civil actions * * * with respect to an element of a claim or defense as to which State law supplies the rule of decision, State law on privilege applies. The question of what is an element of a claim or defense is likely to engender considerable litigation. If the matter in question constitutes an element of a claim, State law supplies the privilege rule; whereas if it is a mere item of proof with respect to a claim, then, even though State law might supply the rule of decision, Federal law on the privilege would apply. Further, disputes will arise as to how the rule should be applied in an antitrust action or in a tax case where the Federal statute is silent as to a particular aspect of the substantive law in question, but Federal cases had incorporated State law by reference to State law. [For a discussion of reference to State substantive law, see note on Federal Incorporation by Reference of State Law, Hart & Wechsler, The Federal Courts and the Federal System, pp. 491494 (2d ed. 1973).] Is a claim (or defense) based on such a reference a claim or defense as to which federal or State law supplies the rule of decision? Another problem not entirely avoidable is the complexity or difficulty the rule introduces into the trial of a Federal case containing a combination of Federal and State claims and defenses, e.g. an action involving Federal antitrust and State unfair competition claims. Two different bodies of privilege law would need to be consulted. It may even develop that the same witness-testimony might be relevant on both counts and privileged as to one but not the other. [The problems with the House formulation are discussed in Rothstein, The Proposed Amendments to the Federal Rules of Evidence, 62 Georgetown University Law Journal 125 (1973) at notes 25, 26 and 7074 and accompanying text.] The formulation adopted by the House is pregnant with litigious mischief. The committee has, therefore, adopted what we believe will be a clearer and more practical guideline for determining when courts should respect State rules of privilege. Basically, it provides that in criminal and Federal question civil cases, federally evolved rules on privilege should apply since it is Federal policy which is being enforced. [It is also intended that the Federal law of privileges should be applied with respect to pendant State law claims when they arise in a Federal question case.] Conversely, in diversity cases where the litigation in question turns on a substantive question of State law, and is brought in the Federal courts because the parties reside in different States, the committee believes it is clear that State rules of privilege should apply unless the proof is directed at a claim or defense for which Federal law supplies the rule of decision (a situation which would not commonly arise.) [While such a situation might require use of two bodies of privilege law, federal and state, in the same case, nevertheless the occasions on which this would be required are considerably reduced as compared with the House version, and confined to situations where the Federal and State interests are such as to justify application of neither privilege law to the case as a whole. If the rule proposed here results in two conflicting bodies of privilege law applying to the same piece of evidence in the same case, it is contemplated that the rule favoring reception of the evidence should be applied. This policy is based on the present rule 43(a) of the Federal Rules of Civil Procedure which provides: In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made.] It is intended that the State rules of privilege should apply equally in original diversity actions and diversity actions removed under 28 U.S.C.  1441(b). Two other comments on the privilege rule should be made. The committee has received a considerable volume of correspondence from psychiatric organizations and psychiatrists concerning the deletion of rule 504 of the rule submitted by the Supreme Court. It should be clearly understood that, in approving this general rule as to privileges, the action of Congress should not be understood as disapproving any recognition of a psychiatrist-patient, or husband-wife, or any other of the enumerated privileges contained in the Supreme Court rules. Rather, our action should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis. Further, we would understand that the prohibition against spouses testifying against each other is considered a rule of privilege and covered by this rule and not by rule 601 of the competency of witnesses. Notes of Conference Committee, House Report No. 931597 Rule 501 deals with the privilege of a witness not to testify. Both the House and Senate bills provide that federal privilege law applies in criminal cases. In civil actions and proceedings, the House bill provides that state privilege law applies to an element of a claim or defense as to which State law supplies the rule of decision. The Senate bill provides that in civil actions and proceedings arising under 28 U.S.C.  1332 or 28 U.S.C.  1335, or between citizens of different States and removed under 28 U.S.C.  1441(b) the privilege of a witness, person, government, State or political subdivision thereof is determined in accordance with State law, unless with respect to the particular claim or defense, Federal law supplies the rule of decision. The wording of the House and Senate bills differs in the treatment of civil actions and proceedings. The rule in the House bill applies to evidence that relates to an element of a claim or defense. If an item of proof tends to support or defeat a claim or defense, or an element of a claim or defense, and if state law supplies the rule of decision for that claim or defense, then state privilege law applies to that item of proof. Under the provision in the House bill, therefore, state privilege law will usually apply in diversity cases. There may be diversity cases, however, where a claim or defense is based upon federal law. In such instances, Federal privilege law will apply to evidence relevant to the federal claim or defense. See Sola Electric Co. v. Jefferson Electric Co In nondiversity jurisdiction civil cases, federal privilege law will generally apply. In those situations where a federal court adopts or incorporates state law to fill interstices or gaps in federal statutory phrases, the court generally will apply federal privilege law. As Justice Jackson has said: A federal court sitting in a non-diversity case such as this does not sit as a local tribunal. In some cases it may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state. DOench, Duhme & Co. v. Federal Deposit Insurance Corp Holmberg v. Armbrecht DeSylva v. Ballentine In civil actions and proceedings, where the rule of decision as to a claim or defense or as to an element of a claim or defense is supplied by state law, the House provision requires that state privilege law apply. The Conference adopts the House provision. Committee Notes on Rules2011 Amendment The language of Rule 501 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). (c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred. (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the courtin which event the disclosure is also not a waiver in any other federal or state proceeding. (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. (f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision. (g) Definitions. In this rule: (1) attorney-client privilege means the protection that applicable law provides for confidential attorney-client communications; and (2) work-product protection means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. (Added Pub. L. 110322,  1(a) Sept. 19, 2008 122 Stat. 3537 Apr. 26, 2011 Dec. 1, 2011  Explanatory Note on Evidence Rule 502 The following explanatory note was prepared by the Judicial Conference Advisory Committee on Evidence Rules, revised Nov. 28, 2007 This new rule has two major purposes: 1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work productspecifically those disputes involving inadvertent disclosure and subject matter waiver. 2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery. See, e.g., Hopson v. City of Baltimore The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant to a confidentiality order, the courts order will be enforceable. Moreover, if a federal courts confidentiality order is not enforceable in a state court then the burdensome costs of privilege review and retention are unlikely to be reduced. The rule makes no attempt to alter federal or state law on whether a communication or information is protected under the attorney-client privilege or work-product immunity as an initial matter. Moreover, while establishing some exceptions to waiver, the rule does not purport to supplant applicable waiver doctrine generally. The rule governs only certain waivers by disclosure. Other common-law waiver doctrines may result in a finding of waiver even where there is no disclosure of privileged information or work product. See, e.g., Nguyen v. Excel Corp. Ryers v. Burleson Subdivision (a) See, e.g., In re United Mine Workers of America Employee Benefit Plans Litig. See In re Sealed Case The language concerning subject matter waiverought in fairnessis taken from Rule 106, because the animating principle is the same. Under both Rules, a party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation. To assure protection and predictability, the rule provides that if a disclosure is made at the federal level, the federal rule on subject matter waiver governs subsequent state court determinations on the scope of the waiver by that disclosure. Subdivision (b) See generally Hopson v. City of Baltimore The rule opts for the middle ground: inadvertent disclosure of protected communications or information in connection with a federal proceeding or to a federal office or agency does not constitute a waiver if the holder took reasonable steps to prevent disclosure and also promptly took reasonable steps to rectify the error. This position is in accord with the majority view on whether inadvertent disclosure is a waiver. Cases such as Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co. Hartford Fire Ins. Co. v. Garvey The rule does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently. The rule applies to inadvertent disclosures made to a federal office or agency, including but not limited to an office or agency that is acting in the course of its regulatory, investigative or enforcement authority. The consequences of waiver, and the concomitant costs of pre-production privilege review, can be as great with respect to disclosures to offices and agencies as they are in litigation. Subdivision (c) The rule does not address the enforceability of a state court confidentiality order in a federal proceeding, as that question is covered both by statutory law and principles of federalism and comity. See See also Tucker v. Ohtsu Tire & Rubber Co. Subdivision (d) There is some dispute on whether a confidentiality order entered in one case is enforceable in other proceedings. See generally Hopson v. City of Baltimore See Zubulake v. UBS Warburg LLC Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal courts order. Under subdivision (d), a federal court may order that disclosure of privileged or protected information in connection with a federal proceeding does not result in waiver. But subdivision (d) does not allow the federal court to enter an order determining the waiver effects of a separate disclosure of the same information in other proceedings, state or federal. If a disclosure has been made in a state proceeding (and is not the subject of a state-court order on waiver), then subdivision (d) is inapplicable. Subdivision (c) would govern the federal courts determination whether the state-court disclosure waived the privilege or protection in the federal proceeding. Subdivision (e) Subdivision (f) The rule is intended to apply in all federal court proceedings, including court-annexed and court-ordered arbitrations, without regard to any possible limitations of Rules 101 and 1101. This provision is not intended to raise an inference about the applicability of any other rule of evidence in arbitration proceedings more generally. The costs of discovery can be equally high for state and federal causes of action, and the rule seeks to limit those costs in all federal proceedings, regardless of whether the claim arises under state or federal law. Accordingly, the rule applies to state law causes of action brought in federal court. Subdivision (g) The definition of work product materials is intended to include both tangible and intangible information. See In re Cendant Corp. Sec. Litig. [During the legislative process by which Congress enacted legislation adopting Rule 502 ( Pub. L. 110322 Sept. 19, 2008 122 Stat. 3537 September 8, 2008 Committee Notes on Rules2011 Amendment Rule 502 has been amended by changing the initial letter of a few words from uppercase to lowercase as part of the restyling of the Evidence Rules to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.  References in Text The Federal Rules of Civil Procedure, referred to in subd. (b)(3), are set out in this Appendix. Effective Date Pub. L. 110322,  1(c) Sept. 19, 2008 122 Stat. 3538 The amendments made by this Act [enacting this rule] shall apply in all proceedings commenced after the date of enactment of this Act [ Sept. 19, 2008 ARTICLE VI. WITNESSES Rule 601. Competency to Testify in General  Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witnesss competency regarding a claim or defense for which state law supplies the rule of decision. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1934 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules This general ground-clearing eliminates all grounds of incompetency not specifically recognized in the succeeding rules of this Article. Included among the grounds thus abolished are religious belief, conviction of crime, and connection with the litigation as a party or interested person or spouse of a party or interested person. With the exception of the so-called Dead Mans Acts, American jurisdictions generally have ceased to recognize these grounds. The Dead Mans Acts are surviving traces of the common law disqualification of parties and interested persons. They exist in variety too great to convey conviction of their wisdom and effectiveness. These rules contain no provision of this kind. For the reasoning underlying the decision not to give effect to state statutes in diversity cases, see the Advisory Committees Note to Rule 501. No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application. A leading commentator observes that few witnesses are disqualified on that ground. Weihofen, Testimonial Competence and Credibility, 34 Geo. Wash.L.Rev. 53 (1965). Discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence. 2 Wigmore  501, 509. Standards of moral qualification in practice consist essentially of evaluating a persons truthfulness in terms of his own answers about it. Their principal utility is in affording an opportunity on voir dire examination to impress upon the witness his moral duty. This result may, however, be accomplished more directly, and without haggling in terms of legal standards, by the manner of administering the oath or affirmation under Rule 603. Admissibility of religious belief as a ground of impeachment is treated in Rule 610. Conviction of crime as a ground of impeachment is the subject of Rule 609. Marital relationship is the basis for privilege under Rule 505. Interest in the outcome of litigation and mental capacity are, of course, highly relevant to credibility and require no special treatment to render them admissible along with other matters bearing upon the perception, memory, and narration of witnesses. Notes of Committee on the Judiciary, House Report No. 93650 Rule 601 as submitted to the Congress provided that Every person is competent to be a witness except as otherwise provided in these rules. One effect of the Rule as proposed would have been to abolish age, mental capacity, and other grounds recognized in some State jurisdictions as making a person incompetent as a witness. The greatest controversy centered around the Rules rendering inapplicable in the federal courts the so-called Dead Mans Statutes which exist in some States. Acknowledging that there is substantial disagreement as to the merit of Dead Mans Statutes, the Committee nevertheless believed that where such statutes have been enacted they represent State policy which should not be overturned in the absence of a compelling federal interest. The Committee therefore amended the Rule to make competency in civil actions determinable in accordance with State law with respect to elements of claims or defenses as to which State law supplies the rule of decision. Cf. Courtland v. Walston & Co., Inc Notes of Committee on the Judiciary, Senate Report No. 931277 The amendment to rule 601 parallels the treatment accorded rule 501 discussed immediately above. Notes of Conference Committee, House Report No. 931597 Rule 601 deals with competency of witnesses. Both the House and Senate bills provide that federal competency law applies in criminal cases. In civil actions and proceedings, the House bill provides that state competency law applies to an element of a claim or defense as to which State law supplies the rule of decision. The Senate bill provides that in civil actions and proceedings arising under 28 U.S.C.  1332 or 28 U.S.C.  1335, or between citizens of different States and removed under 28 U.S.C.  1441(b) the competency of a witness, person, government, State or political subdivision thereof is determined in accordance with State law, unless with respect to the particular claim or defense, Federal law supplies the rule of decision. The wording of the House and Senate bills differs in the treatment of civil actions and proceedings. The rule in the House bill applies to evidence that relates to an element of a claim or defense. If an item of proof tends to support or defeat a claim or defense, or an element of a claim or defense, and if state law supplies the rule of decision for that claim or defense, then state competency law applies to that item of proof. For reasons similar to those underlying its action on Rule 501, the Conference adopts the House provision. Committee Notes on Rules2011 Amendment The language of Rule 601 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 602. Need for Personal Knowledge  A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witnesss own testimony. This rule does not apply to a witnesss expert testimony under Rule 703. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1934 Mar. 2, 1987 Oct. 1, 1987 Apr. 25, 1988 Nov. 1, 1988 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules * * * [T]he rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact is a most pervasive manifestation of the common law insistence upon the most reliable sources of information. McCormick  10, p. 19. These foundation requirements may, of course, be furnished by the testimony of the witness himself; hence personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception. 2 Wigmore  650. It will be observed that the rule is in fact a specialized application of the provisions of Rule 104(b) on conditional relevancy. This rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. Rules 801 and 805 would be applicable. This rule would, however, prevent him from testifying to the subject matter of the hearsay statement, as he has no personal knowledge of it. The reference to Rule 703 is designed to avoid any question of conflict between the present rule and the provisions of that rule allowing an expert to express opinions based on facts of which he does not have personal knowledge. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 602 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 603. Oath or Affirmation to Testify Truthfully  Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witnesss conscience. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1934 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required. As is true generally, affirmation is recognized by federal law. Oath includes affirmation, 1 U.S.C.  1; judges and clerks may administer oaths and affirmations, 28 U.S.C.  459, 953; and affirmations are acceptable in lieu of oaths under Rule 43(d) of the Federal Rules of Civil Procedure. Perjury by a witness is a crime, 18 U.S.C.  1621. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 603 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 604. Interpreter  An interpreter must be qualified and must give an oath or affirmation to make a true translation. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1934 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The rule implements Rule 43(f) of the Federal Rules of Civil Procedure and Rule 28(b) of the Federal Rules of Criminal Procedure, both of which contain provisions for the appointment and compensation of interpreters. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 604 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 605. Judges Competency as a Witness  The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1934 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules In view of the mandate of 28 U.S.C.  455 that a judge disqualify himself in any case in which he * * * is or has been a material witness, the likelihood that the presiding judge in a federal court might be called to testify in the trial over which he is presiding is slight. Nevertheless the possibility is not totally eliminated. The solution here presented is a broad rule of incompetency, rather than such alternatives as incompetency only as to material matters, leaving the matter to the discretion of the judge, or recognizing no incompetency. The choice is the result of inability to evolve satisfactory answers to questions which arise when the judge abandons the bench for the witness stand. Who rules on objections? Who compels him to answer? Can he rule impartially on the weight and admissibility of his own testimony? Can he be impeached or cross-examined effectively? Can he, in a jury trial, avoid conferring his seal of approval on one side in the eyes of the jury? Can he, in a bench trial, avoid an involvement destructive of impartiality? The rule of general incompetency has substantial support. See Report of the Special Committee on the Propriety of Judges Appearing as Witnesses, 36 A.B.A.J. 630 (1950); cases collected in Annot. 157 A.L.R. 311; McCormick  68, p. 147; Uniform Rule 42; California Evidence Code  703; Kansas Code of Civil Procedure  60442; New Jersey Evidence Rule 42. Cf. 6 Wigmore  1909, which advocates leaving the matter to the discretion of the judge, and statutes to that effect collected in Annot. 157 A.L.R. 311. The rule provides an automatic objection. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector. Committee Notes on Rules2011 Amendment The language of Rule 605 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 606. Jurors Competency as a Witness (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jurys presence. (b) During an Inquiry into the Validity of a Verdict or Indictment. (1)  Prohibited Testimony or Other Evidence. (2)  Exceptions. (A) extraneous prejudicial information was improperly brought to the jurys attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1934 Pub. L. 94149,  1(10) Dec. 12, 1975 89 Stat. 805 Mar. 2, 1987 Oct. 1, 1987 Apr. 12, 2006 Dec. 1, 2006 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) Subdivision (b) McDonald v. Pless The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment. See Grenz v. Werre Mattox v. United States Under the federal decisions the central focus has been upon insulation of the manner in which the jury reached its verdict, and this protection extends to each of the components of deliberation, including arguments, statements, discussions, mental and emotional reactions, votes, and any other feature of the process. Thus testimony or affidavits of jurors have been held incompetent to show a compromise verdict, Hyde v. United States McDonald v. Pless Holden v. Porter Farmers Coop. Elev. Assn v. Strand Farmers Coop. Elev. Assn v. Strand, supra United States v. Chereton United States v. Crosby Mattox v. United States Parker v. Gladden This rule does not purport to specify the substantive grounds for setting aside verdicts for irregularity; it deals only with the competency of jurors to testify concerning those grounds. Allowing them to testify as to matters other than their own inner reactions involves no particular hazard to the values sought to be protected. The rules is based upon this conclusion. It makes no attempt to specify the substantive grounds for setting aside verdicts for irregularity. See also Rule 6(e) of the Federal Rules of Criminal Procedure and 18 U.S.C.  3500, governing the secrecy of grand jury proceedings. The present rules does not relate to secrecy and disclosure but to the competency of certain witnesses and evidence. Notes of Committee on the Judiciary, House Report No. 93650 As proposed by the Court, Rule 606(b) limited testimony by a juror in the course of an inquiry into the validity of a verdict or indictment. He could testify as to the influence of extraneous prejudicial information brought to the jurys attention (e.g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e.g. a threat to the safety of a member of his family), but he could not testify as to other irregularities which occurred in the jury room. Under this formulation a quotient verdict could not be attacked through the testimony of a juror, nor could a juror testify to the drunken condition of a fellow juror which so disabled him that he could not participate in the jurys deliberations. The 1969 and 1971 Advisory Committee drafts would have permitted a member of the jury to testify concerning these kinds of irregularities in the jury room. The Advisory Committee note in the 1971 draft stated that * * * the door of the jury room is not a satisfactory dividing point, and the Supreme Court has refused to accept it. The Advisory Committee further commented that The trend has been to draw the dividing line between testimony as to mental processes, on the one hand, and as to the existence of conditions or occurrences of events calculated improperly to influence the verdict, on the other hand, without regard to whether the happening is within or without the jury room. * * * The jurors are the persons who know what really happened. Allowing them to testify as to matters other than their own reactions involves no particular hazard to the values sought to be protected. The rule is based upon this conclusion. It makes no attempt to specify the substantive grounds for setting aside verdicts for irregularity. Objective jury misconduct may be testified to in California, Florida, Iowa, Kansas, Nebraska, New Jersey, North Dakota, Ohio, Oregon, Tennessee, Texas, and Washington. Persuaded that the better practice is that provided for in the earlier drafts, the Committee amended subdivision (b) to read in the text of those drafts. Notes of Committee on the Judiciary, Senate Report No. 931277 As adopted by the House, this rule would permit the impeachment of verdicts by inquiry into, not the mental processes of the jurors, but what happened in terms of conduct in the jury room. This extension of the ability to impeach a verdict is felt to be unwarranted and ill-advised. The rule passed by the House embodies a suggestion by the Advisory Committee of the Judicial Conference that is considerably broader than the final version adopted by the Supreme Court, which embodies long-accepted Federal law. Although forbidding the impeachment of verdicts by inquiry into the jurors mental processes, it deletes from the Supreme Court version the proscription against testimony as to any matter or statement occurring during the course of the jurys deliberations. This deletion would have the effect of opening verdicts up to challenge on the basis of what happened during the jurys internal deliberations, for example, where a juror alleged that the jury refused to follow the trial judges instructions or that some of the jurors did not take part in deliberations. Permitting an individual to attack a jury verdict based upon the jurys internal deliberations has long been recognized as unwise by the Supreme Court. In McDonald v. Pless * * * * * [L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigationto the destruction of all frankness and freedom of discussion and conference [238 U.S. 264, at 267 (1914)]. * * * * * As it stands then, the rule would permit the harassment of former jurors by losing parties as well as the possible exploitation of disgruntled or otherwise badly-motivated ex-jurors. Public policy requires a finality to litigation. And common fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors. Notes of Conference Committee, House Report No. 931597 Rule 606(b) deals with juror testimony in an inquiry into the validity of a verdict or indictment. The House bill provides that a juror cannot testify about his mental processes or about the effect of anything upon his or another jurors mind as influencing him to assent to or dissent from a verdict or indictment. Thus, the House bill allows a juror to testify about objective matters occurring during the jurys deliberation, such as the misconduct of another juror or the reaching of a quotient verdict. The Senate bill does not permit juror testimony about any matter or statement occurring during the course of the jurys deliberations. The Senate bill does provide, however, that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurys attention and on the question whether any outside influence was improperly brought to bear on any juror. The Conference adopts the Senate amendment. The Conferees believe that jurors should be encouraged to be conscientious in promptly reporting to the court misconduct that occurs during jury deliberations. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2006 Amendment Rule 606(b) has been amended to provide that juror testimony may be used to prove that the verdict reported was the result of a mistake in entering the verdict on the verdict form. The amendment responds to a divergence between the text of the Rule and the case law that has established an exception for proof of clerical errors. See, e.g., Plummer v. Springfield Term. Ry., Teevee Toons, Inc., v. MP3.Com, Inc., In adopting the exception for proof of mistakes in entering the verdict on the verdict form, the amendment specifically rejects the broader exception, adopted by some courts, permitting the use of juror testimony to prove that the jurors were operating under a misunderstanding about the consequences of the result that they agreed upon. See, e.g., Attridge v. Cencorp Div. of Dover Techs. Intl, Inc., Eastridge Development Co., v. Halpert Associates, Inc., See, e.g., Karl v. Burlington Northern R.R., Robles v. Exxon Corp., Id It should be noted that the possibility of errors in the verdict form will be reduced substantially by polling the jury. Rule 606(b) does not, of course, prevent this precaution. See Evidence, made by the judge before the jurors discharge Evidence Under the Rules Sincox v. United States, Changes Made After Publication and Comments Committee Notes on Rules2011 Amendment The language of Rule 606 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Amendment by Public Law 1975Subd. (b). Pub. L. 94149 Rule 607. Who May Impeach a Witness  Any party, including the party that called the witness, may attack the witnesss credibility. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1934 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The traditional rule against impeaching ones own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary. If the impeachment is by a prior statement, it is free from hearsay dangers and is excluded from the category of hearsay under Rule 801(d)(1). Ladd, Impeachment of Ones Own WitnessNew Developments 4 U.Chi.L.Rev. 69 (1936); McCormick  38; 3 Wigmore  896918. The substantial inroads into the old rule made over the years by decisions, rules, and statutes are evidence of doubts as to its basic soundness and workability. Cases are collected in 3 Wigmore  905. Revised Rule 32(a)(1) of the Federal Rules of Civil Procedure allows any party to impeach a witness by means of his deposition, and Rule 43(b) has allowed the calling and impeachment of an adverse party or person identified with him. Illustrative statutes allowing a party to impeach his own witness under varying circumstances are Ill.Rev. Stats.1967, c. 110,  60; Mass.Laws Annot. 1959, c. 233  23; 20 N.M.Stats. Annot. 1953,  2024; N.Y. CPLR  4514 (McKinney 1963); 12 Vt.Stats. Annot. 1959,  1641a, 1642. Complete judicial rejection of the old rule is found in United States v. Freeman, 302 F.2d 347 (2d Cir. 1962). The same result is reached in Uniform Rule 20; California Evidence Code  785; Kansas Code of Civil Procedure  60420. See also New Jersey Evidence Rule 20. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 607 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 608. A Witnesss Character for Truthfulness or Untruthfulness (a) Reputation or Opinion Evidence. A witnesss credibility may be attacked or supported by testimony about the witnesss reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked. (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesss character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witnesss character for truthfulness. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1935 Mar. 2, 1987 Oct. 1, 1987 Apr. 25, 1988 Nov. 1, 1988 Mar. 27, 2003 Dec. 1, 2003 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) In accordance with the bulk of judicial authority, the inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally. The result is to sharpen relevancy, to reduce surprise, waste of time, and confusion, and to make the lot of the witness somewhat less unattractive. McCormick  44. The use of opinion and reputation evidence as means of proving the character of witnesses is consistent with Rule 405(a). While the modern practice has purported to exclude opinion witnesses who testify to reputation seem in fact often to be giving their opinions, disguised somewhat misleadingly as reputation. See McCormick  44. And even under the modern practice, a common relaxation has allowed inquiry as to whether the witnesses would believe the principal witness under oath. United States v. Walker Character evidence in support of credibility is admissible under the rule only after the witness character has first been attacked, as has been the case at common law. Maguire, Weinstein, et al., Cases on Evidence 295 (5th ed. 1965); McCormick  49, p. 105; 4 Wigmore  1104. The enormous needless consumption of time which a contrary practice would entail justifies the limitation. Opinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence or misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not. McCormick  49; 4 Wigmore  1106, 1107. Whether evidence in the form of contradiction is an attack upon the character of the witness must depend  1108, 1109. As to the use of specific instances on direct by an opinion witness, see the Advisory Committees Note to Rule 405, supra. Subdivision (b) (1) Conviction of crime as a technique of impeachment is treated in detail in Rule 609, and here is merely recognized as an exception to the general rule excluding evidence of specific incidents for impeachment purposes. (2) Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination of the principal witness himself or of a witness who testifies concerning his character for truthfulness. Effective cross-examination demands that some allowance be made for going into matters of this kind, but the possibilities of abuse are substantial. Consequently safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time. Also, the overriding protection of Rule 403 requires that probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury, and that of Rule 611 bars harassment and undue embarrassment. The final sentence constitutes a rejection of the doctrine of such cases as People v. Sorge Griffin v. California Ferguson v. Georgia Notes of Committee on the Judiciary, House Report No. 93650 Rule 608(a) as submitted by the Court permitted attack to be made upon the character for truthfulness or untruthfulness of a witness either by reputation or opinion testimony. For the same reasons underlying its decision to eliminate the admissibility of opinion testimony in Rule 405(a), the Committee amended Rule 608(a) to delete the reference to opinion testimony. The second sentence of Rule 608(b) as submitted by the Court permitted specific instances of misconduct of a witness to be inquired into on cross-examination for the purpose of attacking his credibility, if probative of truthfulness or untruthfulness, and not remote in time. Such cross-examination could be of the witness himself or of another witness who testifies as to his character for truthfulness or untruthfulness. The Committee amended the Rule to emphasize the discretionary power of the court in permitting such testimony and deleted the reference to remoteness in time as being unnecessary and confusing (remoteness from time of trial or remoteness from the incident involved?). As recast, the Committee amendment also makes clear the antecedent of his in the original Court proposal. Notes of Conference Committee, House Report No. 931597 The Senate amendment adds the words opinion or to conform the first sentence of the rule with the remainder of the rule. The Conference adopts the Senate amendment. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2003 Amendment The Rule has been amended to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness character for truthfulness. See United States v. Abel United States v. Fusco Emerging Problems Under the Federal Rules of Evidence See By limiting the application of the Rule to proof of a witness character for truthfulness, the amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity) to Rules 402 and 403. See, e.g., United States v. Winchenbach United States v. Tarantino United States v. Lindemann It should be noted that the extrinsic evidence prohibition of Rule 608(b) bars any reference to the consequences that a witness might have suffered as a result of an alleged bad act. For example, Rule 608(b) prohibits counsel from mentioning that a witness was suspended or disciplined for the conduct that is the subject of impeachment, when that conduct is offered only to prove the character of the witness. See United States v. Davis See also Impeaching the Witness: Prior Bad Acts and Extrinsic Evidence For purposes of consistency the term credibility has been replaced by the term character for truthfulness in the last sentence of subdivision (b). The term credibility is also used in subdivision (a). But the Committee found it unnecessary to substitute character for truthfulness for credibility in Rule 608(a), because subdivision (a)(1) already serves to limit impeachment to proof of such character. Rules 609(a) and 610 also use the term credibility when the intent of those Rules is to regulate impeachment of a witness character for truthfulness. No inference should be derived from the fact that the Committee proposed an amendment to Rule 608(b) but not to Rules 609 and 610. Changes Made After Publication and Comments Committee Notes on Rules2011 Amendment The language of Rule 608 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. The Committee is aware that the Rules limitation of bad-act impeachment to cross-examination is trumped by Rule 607, which allows a party to impeach witnesses on direct examination. Courts have not relied on the term on cross-examination to limit impeachment that would otherwise be permissible under Rules 607 and 608. The Committee therefore concluded that no change to the language of the Rule was necessary in the context of a restyling project. Rule 609. Impeachment by Evidence of a Criminal Conviction (a) In General. The following rules apply to attacking a witnesss character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required provingor the witnesss admittinga dishonest act or false statement. (b)  Limit on Using the Evidence After (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant; (3) an adults conviction for that offense would be admissible to attack the adults credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence. (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1935 Mar. 2, 1987 Oct. 1, 1987 Jan. 26, 1990 Dec. 1, 1990 Apr. 12, 2006 Dec. 1, 2006 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules As a means of impeachment, evidence of conviction of crime is significant only because it stands as proof of the commission of the underlying criminal act. There is little dissent from the general proposition that at least some crimes are relevant to credibility but much disagreement among the cases and commentators about which crimes are usable for this purpose. See McCormick  43; 2 Wright, Federal Practice and Procedure; Criminal  416 (1969). The weight of traditional authority has been to allow use of felonies generally, without regard to the nature of the particular offense, and of crimen falsi P.L. 91358 84 Stat. 473 Luck v. United States The proposed rule incorporates certain basic safeguards, in terms applicable to all witnesses but of particular significance to an accused who elects to testify. These protections include the imposition of definite time limitations, giving effect to demonstrated rehabilitation, and generally excluding juvenile adjudications. Subdivision (a) supra Subdivision (b) Subdivision (c) A similar provision is contained in California Evidence Code  788. Cf. A.L.I. Model Penal Code, Proposed Official Draft  306.6(3)(e) (1962), and discussion in A.L.I. Proceedings 310 (1961). Pardons based on innocence have the effect, of course, of nullifying the conviction ab initio. Subdivision (d) Thomas v. United States Cotton v. United States parens patriae In re Gault Gault Giles v. Maryland Id Subdivision (e) United States v. Empire Packing Co Bloch v. United States Newman v. United States Contra, Campbell v. United States Notes of Committee on the Judiciary, House Report No. 93650 Rule 609(a) as submitted by the Court was modeled after Section 133(a) of Public Law 91358 For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement regardless of the punishment. As reported to the Committee by the Subcommittee, Rule 609(a) was amended to read as follows: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible only if the crime (1) was punishable by death or imprisonment in excess of one year, unless the court determines that the danger of unfair prejudice outweighs the probative value of the evidence of the conviction, or (2) involved dishonesty or false statement. In full committee, the provision was amended to permit attack upon the credibility of a witness by prior conviction only if the prior crime involved dishonesty or false statement. While recognizing that the prevailing doctrine in the federal courts and in most States allows a witness to be impeached by evidence of prior felony convictions without restriction as to type, the Committee was of the view that, because of the danger of unfair prejudice in such practice and the deterrent effect upon an accused who might wish to testify, and even upon a witness who was not the accused, cross-examination by evidence of prior conviction should be limited to those kinds of convictions bearing directly on credibility, i.e Rule 609(b) as submitted by the Court was modeled after Section 133(a) of Public Law 91358 Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date. Under this formulation, a witness entire past record of criminal convictions could be used for impeachment (provided the conviction met the standard of subdivision (a)), if the witness had been most recently released from confinement, or the period of his parole or probation had expired, within ten years of the conviction. The Committee amended the Rule to read in the text of the 1971 Advisory Committee version to provide that upon the expiration of ten years from the date of a conviction of a witness, or of his release from confinement for that offense, that conviction may no longer be used for impeachment. The Committee was of the view that after ten years following a persons release from confinement (or from the date of his conviction) the probative value of the conviction with respect to that persons credibility diminished to a point where it should no longer be admissible. Rule 609(c) as submitted by the Court provided in part that evidence of a witness prior conviction is not admissible to attack his credibility if the conviction was the subject of a pardon, annulment, or other equivalent procedure, based on a showing of rehabilitation, and the witness has not been convicted of a subsequent crime. The Committee amended the Rule to provide that the subsequent crime must have been punishable by death or imprisonment in excess of one year, on the ground that a subsequent conviction of an offense not a felony is insufficient to rebut the finding that the witness has been rehabilitated. The Committee also intends that the words based on a finding of the rehabilitation of the person convicted apply not only to certificate of rehabilitation, or other equivalent procedure, but also to pardon and annulment. Notes of Committee on the Judiciary, Senate Report No. 931277 As proposed by the Supreme Court, the rule would allow the use of prior convictions to impeach if the crime was a felony or a misdemeanor if the misdemeanor involved dishonesty or false statement. As modified by the House, the rule would admit prior convictions for impeachment purposes only if the offense, whether felony or misdemeanor, involved dishonesty or false statement. The committee has adopted a modified version of the House-passed rule. In your committees view, the danger of unfair prejudice is far greater when the accused, as opposed to other witnesses, testifies, because the jury may be prejudiced not merely on the question of credibility but also on the ultimate question of guilt or innocence. Therefore, with respect to defendants, the committee agreed with the House limitation that only offenses involving false statement or dishonesty may be used. By that phrase, the committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accuseds propensity to testify truthfully. With respect to other witnesses, in addition to any prior conviction involving false statement or dishonesty, any other felony may be used to impeach if, and only if, the court finds that the probative value of such evidence outweighs its prejudicial effect against the party offering that witness. Notwithstanding this provision, proof of any prior offense otherwise admissible under rule 404 could still be offered for the purposes sanctioned by that rule. Furthermore, the committee intends that notwithstanding this rule, a defendants misrepresentation regarding the existence or nature of prior convictions may be met by rebuttal evidence, including the record of such prior convictions. Similarly, such records may be offered to rebut representations made by the defendant regarding his attitude toward or willingness to commit a general category of offense, although denials or other representations by the defendant regarding the specific conduct which forms the basis of the charge against him shall not make prior convictions admissible to rebut such statement. In regard to either type of representation, of course, prior convictions may be offered in rebuttal only if the defendants statement is made in response to defense counsels questions or is made gratuitously in the course of cross-examination. Prior convictions may not be offered as rebuttal evidence if the prosecution has sought to circumvent the purpose of this rule by asking questions which elicit such representations from the defendant. One other clarifying amendment has been added to this subsection, that is, to provide that the admissibility of evidence of a prior conviction is permitted only upon cross-examination of a witness. It is not admissible if a person does not testify. It is to be understood, however, that a court record of a prior conviction is admissible to prove that conviction if the witness has forgotten or denies its existence. Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness. Rather than exclude all convictions over 10 years old, the committee adopted an amendment in the form of a final clause to the section granting the court discretion to admit convictions over 10 years old, but only upon a determination by the court that the probative value of the conviction supported by specific facts and circumstances, substantially outweighs its prejudicial effect. It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact. It is expected that, in fairness, the court will give the party against whom the conviction is introduced a full and adequate opportunity to contest its admission. Notes of Conference Committee, House Report No. 931597 Rule 609 defines when a party may use evidence of a prior conviction in order to impeach a witness. The Senate amendments make changes in two subsections of Rule 609. The House bill provides that the credibility of a witness can be attacked by proof of prior conviction of a crime only if the crime involves dishonesty or false statement. The Senate amendment provides that a witness credibility may be attacked if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involves dishonesty or false statement, regardless of the punishment. The Conference adopts the Senate amendment with an amendment. The Conference amendment provides that the credibility of a witness, whether a defendant or someone else, may be attacked by proof of a prior conviction but only if the crime: (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted and the court determines that the probative value of the conviction outweighs its prejudicial effect to the defendant; or (2) involved dishonesty or false statement regardless of the punishment. By the phrase dishonesty and false statement the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accuseds propensity to testify truthfully. The admission of prior convictions involving dishonesty and false statement is not within the discretion of the Court. Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted. Thus, judicial discretion granted with respect to the admissibility of other prior convictions is not applicable to those involving dishonesty or false statement. With regard to the discretionary standard established by paragraph (1) of rule 609(a), the Conference determined that the prejudicial effect to be weighed against the probative value of the conviction is specifically the prejudicial effect to the defendant The House bill provides in subsection (b) that evidence of conviction of a crime may not be used for impeachment purposes under subsection (a) if more than ten years have elapsed since the date of the conviction or the date the witness was released from confinement imposed for the conviction, whichever is later. The Senate amendment permits the use of convictions older than ten years, if the court determines, in the interests of justice, that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. The Conference adopts the Senate amendment with an amendment requiring notice by a party that he intends to request that the court allow him to use a conviction older than ten years. The Conferees anticipate that a written notice, in order to give the adversary a fair opportunity to contest the use of the evidence, will ordinarily include such information as the date of the conviction, the jurisdiction, and the offense or statute involved. In order to eliminate the possibility that the flexibility of this provision may impair the ability of a party-opponent to prepare for trial, the Conferees intend that the notice provision operate to avoid surprise. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1990 Amendment The amendment to Rule 609(a) makes two changes in the rule. The first change removes from the rule the limitation that the conviction may only be elicited during cross-examination, a limitation that virtually every circuit has found to be inapplicable. It is common for witnesses to reveal on direct examination their convictions to remove the sting of the impeachment. See e.g., United States v. Bad Cob The second change effected by the amendment resolves an ambiguity as to the relationship of Rules 609 and 403 with respect to impeachment of witnesses other than the criminal defendant. See, Green v. Bock Laundry Machine Co i.e Prior to the amendment, the rule appeared to give the defendant the benefit of the special balancing test when defense witnesses other than the defendant were called to testify. In practice, however, the concern about unfairness to the defendant is most acute when the defendants own convictions are offered as evidence. Almost all of the decided cases concern this type of impeachment, and the amendment does not deprive the defendant of any meaningful protection, since Rule 403 now clearly protects against unfair impeachment of any defense witness other than the defendant. There are cases in which a defendant might be prejudiced when a defense witness is impeached. Such cases may arise, for example, when the witness bears a special relationship to the defendant such that the defendant is likely to suffer some spill-over effect from impeachment of the witness. The amendment also protects other litigants from unfair impeachment of their witnesses. The danger of prejudice from the use of prior convictions is not confined to criminal defendants. Although the danger that prior convictions will be misused as character evidence is particularly acute when the defendant is impeached, the danger exists in other situations as well. The amendment reflects the view that it is desirable to protect all litigants from the unfair use of prior convictions, and that the ordinary balancing test of Rule 403, which provides that evidence shall not be excluded unless its prejudicial effect substantially outweighs its probative value, is appropriate for assessing the admissibility of prior convictions for impeachment of any witness other than a criminal defendant. The amendment reflects a judgment that decisions interpreting Rule 609(a) as requiring a trial court to admit convictions in civil cases that have little, if anything, to do with credibility reach undesirable results. See, e.g., Diggs v. Lyons cert. denied See, e.g., Petty v. Ideco Czaka v. Hickman Fewer decided cases address the question whether Rule 609(a) provides any protection against unduly prejudicial prior convictions used to impeach government witnesses. Some courts have read Rule 609(a) as giving the government no protection for its witnesses. See, e.g., United States v. Thorne United States v. Nevitt cert. denied The amendment applies the general balancing test of Rule 403 to protect all litigants against unfair impeachment of witnesses. The balancing test protects civil litigants, the government in criminal cases, and the defendant in a criminal case who calls other witnesses. The amendment addresses prior convictions offered under Rule 609, not for other purposes, and does not run afoul, therefore, of Davis v. Alaska Davis See generally The probability that prior convictions of an ordinary government witness will be unduly prejudicial is low in most criminal cases. Since the behavior of the witness is not the issue in dispute in most cases, there is little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence. Thus, trial courts will be skeptical when the government objects to impeachment of its witnesses with prior convictions. Only when the government is able to point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes will the conviction be excluded. The amendment continues to divide subdivision (a) into subsections (1) and (2) thus facilitating retrieval under current computerized research programs which distinguish the two provisions. The Committee recommended no substantive change in subdivision (a)(2), even though some cases raise a concern about the proper interpretation of the words dishonesty or false statement. These words were used but not explained in the original Advisory Committee Note accompanying Rule 609. Congress extensively debated the rule, and the Report of the House and Senate Conference Committee states that [b]y the phrase dishonesty and false statement, the Conference means crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi Finally, the Committee determined that it was unnecessary to add to the rule language stating that, when a prior conviction is offered under Rule 609, the trial court is to consider the probative value of the prior conviction for impeachment Committee Notes on Rules2006 Amendment The amendment provides that Rule 609(a)(2) mandates the admission of evidence of a conviction only when the conviction required the proof of (or in the case of a guilty plea, the admission of) an act of dishonesty or false statement. Evidence of all other convictions is inadmissible under this subsection, irrespective of whether the witness exhibited dishonesty or made a false statement in the process of the commission of the crime of conviction. Thus, evidence that a witness was convicted for a crime of violence, such as murder, is not admissible under Rule 609(a)(2), even if the witness acted deceitfully in the course of committing the crime. The amendment is meant to give effect to the legislative intent to limit the convictions that are to be automatically admitted under subdivision (a)(2). The Conference Committee provided that by dishonesty and false statement it meant crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi crimina falsi See Deceit and the Classification of Crimes: Federal Rule of Evidence 609(a)(2) and the Origins of Evidence of crimes in the nature of crimina falsi e.g. e.g. The amendment requires that the proponent have ready proof that the conviction required the factfinder to find, or the defendant to admit, an act of dishonesty or false statement. Ordinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement. Where the deceitful nature of the crime is not apparent from the statute and the face of the judgmentas, for example, where the conviction simply records a finding of guilt for a statutory offense that does not reference deceit expresslya proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions to show that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false statement in order for the witness to have been convicted. Cf. Taylor v. United States Shepard v. United States crimen falsi The amendment also substitutes the term character for truthfulness for the term credibility in the first sentence of the Rule. The limitations of Rule 609 are not applicable if a conviction is admitted for a purpose other than to prove the witnesss character for untruthfulness. See, e.g., United States v. Lopez Changes Made After Publication and Comments Committee Notes on Rules2011 Amendment The language of Rule 609 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 610. Religious Beliefs or Opinions  Evidence of a witnesss religious beliefs or opinions is not admissible to attack or support the witnesss credibility. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1936 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules While the rule forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature, an inquiry for the purpose of showing interest or bias because of them is not within the prohibition. Thus disclosure of affiliation with a church which is a party to the litigation would be allowable under the rule. Cf. Tucker v. Reil Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 610 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witnesss credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witnesss testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1936 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) Item (1) restates in broad terms the power and obligation of the judge as developed under common law principles. It covers such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions, McCormick  5, the order of calling witnesses and presenting evidence, 6 Wigmore  1867, the use of demonstrative evidence, McCormick  179, and the many other questions arising during the course of a trial which can be solved only by the judges common sense and fairness in view of the particular circumstances. Item (2) is addressed to avoidance of needless consumption of time, a matter of daily concern in the disposition of cases. A companion piece is found in the discretion vested in the judge to exclude evidence as a waste of time in Rule 403(b). Item (3) calls for a judgement under the particular circumstances whether interrogation tactics entail harassment or undue embarrassment. Pertinent circumstances include the importance of the testimony, the nature of the inquiry, its relevance to credibility, waste of time, and confusion. McCormick  42. In Alford v. United States Berger v. United States The inquiry into specific instances of conduct of a witness allowed under Rule 608(b) is, of course, subject to this rule. Subdivision (b) Resurrection Gold Mining Co. v. Fortune Gold Mining Co Finch v. Weiner Moyer v. Aetna Life Ins. Co Butler v. New York Central R. Co United States v. Johnson Union Automobile Indemnity Assn. v. Capitol Indemnity Ins. Co The foregoing considerations favoring the wide-open or restrictive rules may well be thought to be fairly evenly balanced. There is another factor, however, which seems to swing the balance overwhelmingly in favor of the wide-open rule. This is the consideration of economy of time and energy. Obviously, the wide-open rule presents little or no opportunity for dispute in its application. The restrictive practice in all its forms, on the other hand, is productive in many court rooms, of continual bickering over the choice of the numerous variations of the scope of the direct criterion, and of their application to particular cross-questions. These controversies are often reventilated on appeal, and reversals for error in their determination are frequent. Observance of these vague and ambiguous restrictions is a matter of constant and hampering concern to the cross-examiner. If these efforts, delays and misprisions were the necessary incidents to the guarding of substantive rights or the fundamentals of fair trial, they might be worth the cost. As the price of the choice of an obviously debatable regulation of the order of evidence, the sacrifice seems misguided. The American Bar Associations Committee for the Improvement of the Law of Evidence for the year 193738 said this: The rule limiting cross-examination to the precise subject of the direct examination is probably the most frequent rule (except the Opinion rule) leading in the trial practice today to refined and technical quibbles which obstruct the progress of the trial, confuse the jury, and give rise to appeal on technical grounds only. Some of the instances in which Supreme Courts have ordered new trials for the mere transgression of this rule about the order of evidence have been astounding. We recommend that the rule allowing questions upon any part of the issue known to the witness * * * be adopted. * * *  McCormick,  27, p. 51. See also 5 Moores Federal Practice  43.10 (2nd ed. 1964). The provision of the second sentence, that the judge may in the interests of justice limit inquiry into new matters on cross-examination, is designed for those situations in which the result otherwise would be confusion, complication, or protraction of the case, not as a matter of rule but as demonstrable in the actual development of the particular case. The rule does not purport to determine the extent to which an accused who elects to testify thereby waives his privilege against self-incrimination. The question is a constitutional one, rather than a mere matter of administering the trial. Under Simmons v. United States supra Tucker v. United States Johnson v. United States Brown v. United States Cross v. United States United States v. Baker Subdivision (c) The rule also conforms to tradition in making the use of leading questions on cross-examination a matter of right. The purpose of the qualification ordinarily is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the cross-examination of a party by his own counsel after being called by the opponent (savoring more of re-direct) or of an insured defendant who proves to be friendly to the plaintiff. The final sentence deals with categories of witnesses automatically regarded and treated as hostile. Rule 43(b) of the Federal Rules of Civil Procedure has included only an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. This limitation virtually to persons whose statements would stand as admissions is believed to be an unduly narrow concept of those who may safely be regarded as hostile without further demonstration. See, for example, Maryland Casualty Co. v. Kador Degelos v. Fidelity and Casualty Co Notes of Committee on the Judiciary, House Report No. 93650 As submitted by the Court, Rule 611(b) provided: A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination. The Committee amended this provision to return to the rule which prevails in the federal courts and thirty-nine State jurisdictions. As amended, the Rule is in the text of the 1969 Advisory Committee draft. It limits cross-examination to credibility and to matters testified to on direct examination, unless the judge permits more, in which event the cross-examiner must proceed as if on direct examination. This traditional rule facilitates orderly presentation by each party at trial. Further, in light of existing discovery procedures, there appears to be no need to abandon the traditional rule. The third sentence of Rule 611(c) as submitted by the Court provided that: In civil cases, a party is entitled to call an adverse party or witness identified with him and interrogate by leading questions. The Committee amended this Rule to permit leading questions to be used with respect to any hostile witness, not only an adverse party or person identified with such adverse party. The Committee also substituted the word When for the phrase In civil cases to reflect the possibility that in criminal cases a defendant may be entitled to call witnesses identified with the government, in which event the Committee believed the defendant should be permitted to inquire with leading questions. Notes of Committee on the Judiciary, Senate Report No. 931277 Rule 611(b) as submitted by the Supreme Court permitted a broad scope of cross-examination: cross-examination on any matter relevant to any issue in the case unless the judge, in the interests of justice, limited the scope of cross-examination. The House narrowed the Rule to the more traditional practice of limiting cross-examination to the subject matter of direct examination (and credibility), but with discretion in the judge to permit inquiry into additional matters in situations where that would aid in the development of the evidence or otherwise facilitate the conduct of the trial. The committee agrees with the House amendment. Although there are good arguments in support of broad cross-examination from perspectives of developing all relevant evidence, we believe the factors of insuring an orderly and predictable development of the evidence weigh in favor of the narrower rule, especially when discretion is given to the trial judge to permit inquiry into additional matters. The committee expressly approves this discretion and believes it will permit sufficient flexibility allowing a broader scope of cross-examination whenever appropriate. The House amendment providing broader discretionary cross-examination permitted inquiry into additional matters only as if on direct examination. As a general rule, we concur with this limitation, however, we would understand that this limitation would not preclude the utilization of leading questions if the conditions of subsection (c) of this rule were met, bearing in mind the judges discretion in any case to limit the scope of cross-examination [see McCormick on Evidence,  2426 (especially 24) (2d ed. 1972)]. Further, the committee has received correspondence from Federal judges commenting on the applicability of this rule to section 1407 of title 28 As submitted by the Supreme Court, the rule provided: In civil cases, a party is entitled to call an adverse party or witness identified with him and interrogate by leading questions. The final sentence of subsection (c) was amended by the House for the purpose of clarifying the fact that a hostile witnessthat is a witness who is hostile in factcould be subject to interrogation by leading questions. The rule as submitted by the Supreme Court declared certain witnesses hostile as a matter of law and thus subject to interrogation by leading questions without any showing of hostility in fact. These were adverse parties or witnesses identified with adverse parties. However, the wording of the first sentence of subsection (c) while generally, prohibiting the use of leading questions on direct examination, also provides except as may be necessary to develop his testimony. Further, the first paragraph of the Advisory Committee note explaining the subsection makes clear that they intended that leading questions could be asked of a hostile witness or a witness who was unwilling or biased and even though that witness was not associated with an adverse party. Thus, we question whether the House amendment was necessary. However, concluding that it was not intended to affect the meaning of the first sentence of the subsection and was intended solely to clarify the fact that leading questions are permissible in the interrogation of a witness, who is hostile in fact, the committee accepts that House amendment. The final sentence of this subsection was also amended by the House to cover criminal as well as civil cases. The committee accepts this amendment, but notes that it may be difficult in criminal cases to determine when a witness is identified with an adverse party, and thus the rule should be applied with caution. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 611 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 612. Writing Used to Refresh a Witnesss Memory (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Partys Options; Deleting Unrelated Matter. Unless 18 U.S.C.  3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witnesss testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witnesss testimony orif justice so requiresdeclare a mistrial. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1936 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The treatment of writings used to refresh recollection while on the stand is in accord with settled doctrine. McCormick  9, p. 15. The bulk of the case law has, however, denied the existence of any right to access by the opponent when the writing is used prior to taking the stand, though the judge may have discretion in the matter. Goldman v. United States Needelman v. United States People v. Scott State v. Mucci State v. Hunt State v. Desolvers The purpose of the phrase for the purpose of testifying is to safeguard against using the rule as a pretext for wholesale exploration of an opposing partys files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness. The purpose of the rule is the same as that of the Jencks Palermo v. United States Jencks The consequences of nonproduction by the government in a criminal case are those of the Jencks Notes of Committee on the Judiciary, House Report No. 93650 As submitted to Congress, Rule 612 provided that except as set forth in 18 U.S.C. 3500 Goldman v. United States The Committee intends that nothing in the Rule be construed as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 612 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 613. Witnesss Prior Statement (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witnesss prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse partys attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witnesss prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing partys statement under Rule 801(d)(2). ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1936 Mar. 2, 1987 Oct. 1, 1987 Apr. 25, 1988 Nov. 1, 1988 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) The provision for disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary. The rule does not defeat the application of Rule 1002 relating to production of the original when the contents of a writing are sought to be proved. Nor does it defeat the application of Rule 26(b)(3) of the Rules of Civil Procedure, as revised, entitling a person on request to a copy of his own statement, though the operation of the latter may be suspended temporarily. Subdivision (b) See McCormick  37, p. 68. In order to allow for such eventualities as the witness becoming unavailable by the time the statement is discovered, a measure of discretion is conferred upon the judge. Similar provisions are found in California Evidence Code  770 and New Jersey Evidence Rule 22(b). Under principles of expression unius Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 613 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 614. Courts Calling or Examining a Witness (a) Calling. The court may call a witness on its own or at a partys request. Each party is entitled to cross-examine the witness. (b) Examining. The court may examine a witness regardless of who calls the witness. (c) Objections. A party may object to the courts calling or examining a witness either at that time or at the next opportunity when the jury is not present. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1937 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) supra Subdivision (b) Subdivision (c) Committee Notes on Rules2011 Amendment The language of Rule 614 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 615. Excluding Witnesses from the Courtroom; Preventing an Excluded Witnesss Access to Trial Testimony (a) Excluding Witnesses. At a partys request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses testimony. Or the court may do so on its own. But this rule does not authorize excluding: (1) a party who is a natural person; (2) one officer or employee of a party that is not a natural person if that officer or employee has been designated as the partys representative by its attorney; (3) any person whose presence a party shows to be essential to presenting the partys claim or defense; or (4) a person authorized by statute to be present. (b) Additional Orders to Prevent Disclosing and Accessing Testimony. An order under (a) operates only to exclude witnesses from the courtroom. But the court may also, by order: (1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and (2) prohibit excluded witnesses from accessing trial testimony. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1937 Mar. 2, 1987 Oct. 1, 1987 Apr. 25, 1988 Nov. 1, 1988 Pub. L. 100690, title VII,  7075(a) Nov. 18, 1988 102 Stat. 4405 Apr. 24, 1998 Dec. 1, 1998 Apr. 26, 2011 Dec. 1, 2011 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Proposed Rules The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion. 6 Wigmore  18371838. The authority of the judge is admitted, the only question being whether the matter is committed to his discretion or one of right. The rule takes the latter position. No time is specified for making the request. Several categories of persons are excepted. (1) Exclusion of persons who are parties would raise serious problems of confrontation and due process. Under accepted practice they are not subject to exclusion. 6 Wigmore  1841. (2) As the equivalent of the right of a natural-person party to be present, a party which is not a natural person is entitled to have a representative present. Most of the cases have involved allowing a police officer who has been in charge of an investigation to remain in court despite the fact that he will be a witness. United States v. Infanzon Portomene v. United States Powell v. United States Jones v. United States Notes of Committee on the Judiciary, Senate Report No. 931277 Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself inhe always has the client with him to consult during the trial. The investigative agents presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agents presence is essential. Furthermore, it could be dangerous to use the agent as a witness as early in the case as possible, so that he might then help counsel as a nonwitness, since the agents testimony could be needed in rebuttal. Using another, nonwitness agent from the same investigative agency would not generally meet government counsels needs. This problem is solved if it is clear that investigative agents are within the group specified under the second exception made in the rule, for an officer or employee of a party which is not a natural person designated as its representative by its attorney. It is our understanding that this was the intention of the House committee. It is certainly this committees construction of the rule. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules1998 Amendment The amendment is in response to: (1) the Victims Rights and Restitution Act of 1990, 42 U.S.C.  10606, which guarantees, within certain limits, the right of a crime victim to attend the trial; and (2) the Victim Rights Clarification Act of 1997 (18 U.S.C.  3510). Committee Notes on Rules2011 Amendment The language of Rule 615 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Committee Notes on Rules2023 Amendment Rule 615 has been amended for two purposes: (1) Most importantly, the amendment clarifies that the court, in entering an order under this rule, may also prohibit excluded witnesses from learning about, obtaining, or being provided with trial testimony. Many courts have found that a Rule 615 order extends beyond the courtroom, to prohibit excluded witnesses from obtaining access to or being provided with trial testimony. But the terms of the rule did not so provide; and other courts have held that a Rule 615 order was limited to exclusion of witnesses from the trial. On the one hand, the courts extending Rule 615 beyond courtroom exclusion properly recognized that the core purpose of the rule is to prevent witnesses from tailoring their testimony to the evidence presented at trialand that purpose can only be effectuated by regulating out-of-court exposure to trial testimony. See United States v. Robertson An order under subdivision (a) operates only to exclude witnesses from the courtroom. This includes exclusion of witnesses from a virtual trial. Subdivision (b) emphasizes that the court may by order extend the sequestration beyond the courtroom, to prohibit those subject to the order from disclosing trial testimony to excluded witnesses, as well as to directly prohibit excluded witnesses from trying to access trial testimony. Such an extension is often necessary to further the rules policy of preventing tailoring of testimony. The rule gives the court discretion to determine what requirements, if any, are appropriate in a particular case to protect against the risk that witnesses excluded from the courtroom will obtain trial testimony. Nothing in the language of the rule bars a court from prohibiting counsel from disclosing trial testimony to a sequestered witness. To the extent that an order governing counsels disclosure of trial testimony to prepare a witness raises questions of professional responsibility and effective assistance of counsel, as well as the right to confrontation in criminal cases, the court should address those questions on a case-by-case basis. (2) Second, the rule has been amended to clarify that the exception from exclusion for entity representatives is limited to one designated representative per entity. This limitation, which has been followed by most courts, generally provides parity for individual and entity parties. The rule does not prohibit the court from exercising discretion to allow an entity-party to swap one representative for another as the trial progresses, so long as only one witness-representative is exempt at any one time. If an entity seeks to have more than one witness-representative protected from exclusion, it needs to show under subdivision (a)(3) that the witness is essential to presenting the partys claim or defense. Nothing in this amendment prohibits a court from exempting from exclusion multiple witnesses if they are found essential under (a)(3). Amendment by Public Law 1988 Pub. L. 100690 Apr. 25, 1988 Nov. 1, 1988 ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule 701. Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witnesss perception; (b) helpful to clearly understanding the witnesss testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1937 Mar. 2, 1987 Oct. 1, 1987 Apr. 17, 2000 Dec. 1, 2000 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The rule retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event. Limitation (a) is the familiar requirement of first-hand knowledge or observation. Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or conclusion. While the courts have made concessions in certain recurring situations, necessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes of satisfactory judicial administration. McCormick  11. Moreover, the practical impossibility of determinating by rule what is a fact, demonstrated by a century of litigation of the question of what is a fact for purposes of pleading under the Field Code, extends into evidence also. 7 Wigmore  1919. The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness. See Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 415417 (1952). If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule. The language of the rule is substantially that of Uniform. Rule 56(1). Similar provisions are California Evidence Code  800; Kansas Code of Civil Procedure  60456(a); New Jersey Evidence Rule 56(1). Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2000 Amendment Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. See generally Asplundh Mfg. Div. v. Benton Harbor Engg See Emerging Expert Issues Under the 1993 Disclosure Amendments to the Federal Rules of Civil Procedure See also United States v. Figueroa-Lopez The amendment does not distinguish between expert and lay witnesses testimony See, e.g., United States v. Figueroa-Lopez The amendment is not intended to affect the prototypical example[s] of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences. Asplundh Mfg. Div. v. Benton Harbor Engg For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp See, e.g., United States v. Westbrook United States v. Figueroa-Lopez, supra. The amendment incorporates the distinctions set forth in State v. Brown Brown Brown GAP ReportProposed Amendment to Rule 701 1. The words within the scope of Rule 702 were added at the end of the proposed amendment, to emphasize that the Rule does not require witnesses to qualify as experts unless their testimony is of the type traditionally considered within the purview of Rule 702. The Committee Note was amended to accord with this textual change. 2. The Committee Note was revised to provide further examples of the kind of testimony that could and could not be proffered under the limitation imposed by the proposed amendment. Committee Notes on Rules2011 Amendment The language of Rule 701 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. The Committee deleted all reference to an inference on the grounds that the deletion made the Rule flow better and easier to read, and because any inference is covered by the broader term opinion. Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended. Rule 702. Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: (a) the experts scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the experts opinion reflects a reliable application of the principles and methods to the facts of the case. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1937 Apr. 17, 2000 Dec. 1, 2000 Apr. 26, 2011 Dec. 1, 2011 Apr. 24, 2023 Dec. 1, 2023  Notes of Advisory Committee on Proposed Rules An intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge. The most common source of this knowledge is the expert witness, although there are other techniques for supplying it. Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference. The use of opinions is not abolished by the rule, however. It will continue to be permissible for the experts to take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts. See Rules 703 to 705. Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute. Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952). When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. 7 Wigmore  1918. The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the scientific and technical but extend to all specialized knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by knowledge, skill, experience, training or education. Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called skilled witnesses, such as bankers or landowners testifying to land values. Committee Notes on Rules2000 Amendment Rule 702 has been amended in response to Daubert v. Merrell Dow Pharmaceuticals, Inc Daubert Kumho Tire Co. v. Carmichael Daubert Kumho See also Kumho Kumho Kumho See Bourjaily v. United States Daubert Daubert Kumho No attempt has been made to codify these specific factors. Daubert Daubert Kumho see Tyus v. Urban Search Management Daubert See also Kannankeril v. Terminix Intl, Inc Daubert Courts both before and after Daubert (1) Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. Daubert v. Merrell Dow Pharmaceuticals, Inc (2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner (3) Whether the expert has adequately accounted for obvious alternative explanations. See Claar v. Burlington N.R.R Compare Ambrosini v. Labarraque (4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting. Sheehan v. Daily Racing Form, Inc See Kumho Tire Co. v. Carmichael Daubert (5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael Dauberts Moore v. Ashland Chemical, Inc Sterling v. Velsicol Chem. Corp All of these factors remain relevant to the determination of the reliability of expert testimony under the Rule as amended. Other factors may also be relevant. See Kumho See, e.g., Heller v. Shaw Industries, Inc Daubert v. Merrell Dow Pharmaceuticals, Inc A review of the caselaw after Daubert Daubert United States v. 14.38 Acres of Land Situated in Leflore County, Mississippi Daubert See Kumho Tire Co. v. Carmichael When a trial court, applying this amendment, rules that an experts testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise. See, e.g., Heller v. Shaw Industries, Inc In re Paoli R.R. Yard PCB Litigation See also Daubert v. Merrell Dow Pharmaceuticals, Inc Ruiz-Troche v. Pepsi Cola Daubert The Court in Daubert General Elec. Co. v. Joiner Daubert See Lust v. Merrell Dow Pharmaceuticals, Inc In re Paoli R.R. Yard PCB Litig any This is true whether the step completely changes a reliable methodology or merely misapplies that methodology If the expert purports to apply principles and methods to the facts of the case, it is important that this application be conducted reliably. Yet it might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case. For example, experts might instruct the factfinder on the principles of thermodynamics, or bloodclotting, or on how financial markets respond to corporate reports, without ever knowing about or trying to tie their testimony into the facts of the case. The amendment does not alter the venerable practice of using expert testimony to educate the factfinder on general principles. For this kind of generalized testimony, Rule 702 simply requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony fit the facts of the case. As stated earlier, the amendment does not distinguish between scientific and other forms of expert testimony. The trial courts gatekeeping function applies to testimony by any expert. See Kumho Tire Co. v. Carmichael Dauberts See Watkins v. Telsmith, Inc See, e.g Standards and Procedures for Determining the Admissibility of Expert Testimony after Daubert The amendment requires that the testimony must be the product of reliable principles and methods that are reliably applied to the facts of the case. While the terms principles and methods may convey a certain impression when applied to scientific knowledge, they remain relevant when applied to testimony based on technical or other specialized knowledge. For example, when a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of the conversations. So long as the principles and methods are reliable and applied reliably to the facts of the case, this type of testimony should be admitted. Nothing in this amendment is intended to suggest that experience aloneor experience in conjunction with other knowledge, skill, training or educationmay not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony. See, e.g., United States v. Jones Tassin v. Sears Roebuck See also Kumho Tire Co. v. Carmichael If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial courts gatekeeping function requires more than simply taking the experts word for it. See Daubert v. Merrell Dow Pharmaceuticals, Inc Daubert See OConner v. Commonwealth Edison Co See also Kumho Tire Co. v. Carmichael Subpart (1) of Rule 702 calls for a quantitative rather than qualitative analysis. The amendment requires that expert testimony be based on sufficient underlying facts or data. The term data is intended to encompass the reliable opinions of other experts. See the original Advisory Committee Note to Rule 703. The language facts or data is broad enough to allow an expert to rely on hypothetical facts that are supported by the evidence. Id. When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts. The emphasis in the amendment on sufficient facts or data is not intended to authorize a trial court to exclude an experts testimony on the ground that the court believes one version of the facts and not the other. There has been some confusion over the relationship between Rules 702 and 703. The amendment makes clear that the sufficiency of the basis of an experts testimony is to be decided under Rule 702. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the experts basis cannot be divorced from the ultimate reliability of the experts opinion. In contrast, the reasonable reliance requirement of Rule 703 is a relatively narrow inquiry. When an expert relies on inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied on by other experts in the field. If so, the expert can rely on the information in reaching an opinion. However, the question whether the expert is relying on a sufficient The amendment makes no attempt to set forth procedural requirements for exercising the trial courts gatekeeping function over expert testimony. See The Daubert Puzzle Daubert Daubert See, e.g., Cortes-Irizarry v. Corporacion Insular Daubert In re Paoli R.R. Yard PCB Litig in limine Claar v. Burlington N.R.R The amendment continues the practice of the original Rule in referring to a qualified witness as an expert. This was done to provide continuity and to minimize change. The use of the term expert in the Rule does not, however, mean that a jury should actually be informed that a qualified witness is testifying as an expert. Indeed, there is much to be said for a practice that prohibits the use of the term expert by both the parties and the court at trial. Such a practice ensures that trial courts do not inadvertently put their stamp of authority on a witnesss opinion, and protects against the jurys being overwhelmed by the so-called experts. Hon. Charles Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word Expert Under the Federal Rules of Evidence in Criminal and Civil Jury Trials GAP ReportProposed Amendment to Rule 702 1. The word reliable was deleted from Subpart (1) of the proposed amendment, in order to avoid an overlap with Evidence Rule 703, and to clarify that an expert opinion need not be excluded simply because it is based on hypothetical facts. The Committee Note was amended to accord with this textual change. 2. The Committee Note was amended throughout to include pertinent references to the Supreme Courts decision in Kumho Tire Co. v. Carmichael 3. The Committee Note was revised to emphasize that the amendment is not intended to limit the right to jury trial, nor to permit a challenge to the testimony of every expert, nor to preclude the testimony of experience-based experts, nor to prohibit testimony based on competing methodologies within a field of expertise. 4. Language was added to the Committee Note to clarify that no single factor is necessarily dispositive of the reliability inquiry mandated by Evidence Rule 702. Committee Notes on Rules2011 Amendment The language of Rule 702 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Committee Notes on Rules2023 Amendment Rule 702 has been amended in two respects: (1) First, the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule. See See Bourjaily v. United States Huddleston v. United States There is no intent to raise any negative inference regarding the applicability of the Rule 104(a) standard of proof for other rules. The Committee concluded that emphasizing the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to apply correctly the reliability requirements of that rule. Nor does the amendment require that the court make a finding of reliability in the absence of objection. The amendment clarifies that the preponderance standard applies to the three reliability-based requirements added in 2000requirements that many courts have incorrectly determined to be governed by the more permissive Rule 104(b) standard. But it remains the case that other admissibility requirements in the rule (such as that the expert must be qualified and the experts testimony must help the trier of fact) are governed by the Rule 104(a) standard as well. Some challenges to expert testimony will raise matters of weight rather than admissibility even under the Rule 104(a) standard. For example, if the court finds it more likely than not that an expert has a sufficient basis to support an opinion, the fact that the expert has not read every single study that exists will raise a question of weight and not admissibility. But this does not mean, as certain courts have held, that arguments about the sufficiency of an experts basis always go to weight and not admissibility. Rather it means that once the court has found it more likely than not that the admissibility requirement has been met, any attack by the opponent will go only to the weight of the evidence. It will often occur that experts come to different conclusions based on contested sets of facts. Where that is so, the Rule 104(a) standard does not necessarily require exclusion of either sides experts. Rather, by deciding the disputed facts, the jury can decide which sides experts to credit. [P]roponents do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable. ... The evidentiary requirement of reliability is lower than the merits standard of correctness.  Advisory Committee Note to the 2000 amendment to Rule 702, quoting In re Paoli R.R. Yard PCB Litigation Rule 702 requires that the experts knowledge help the trier of fact to understand the evidence or to determine a fact in issue. Unfortunately, some courts have required the experts testimony to appreciably help the trier of fact. Applying a higher standard than helpfulness to otherwise reliable expert testimony is unnecessarily strict. (2) Rule 702(d) has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the experts basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the experts basis and methodology may reliably support. The amendment is especially pertinent to the testimony of forensic experts in both criminal and civil cases. Forensic experts should avoid assertions of absolute or one hundred percent certaintyor to a reasonable degree of scientific certaintyif the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, the judge should (where possible) receive an estimate of the known or potential rate of error of the methodology employed, based (where appropriate) on studies that reflect how often the method produces accurate results. Expert opinion testimony regarding the weight of feature comparison evidence (i.e., evidence that a set of features corresponds between two examined items) must be limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods. This amendment does not, however, bar testimony that comports with substantive law requiring opinions to a particular degree of certainty. Nothing in the amendment imposes any new, specific procedures. Rather, the amendment is simply intended to clarify that Rule 104(a)s requirement applies to expert opinions under Rule 702. Similarly, nothing in the amendment requires the court to nitpick an experts opinion in order to reach a perfect expression of what the basis and methodology can support. The Rule 104(a) standard does not require perfection. On the other hand, it does not permit the expert to make claims that are unsupported by the experts basis and methodology. Rule 703. Bases of an Experts Opinion Testimony  An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1937 Mar. 2, 1987 Oct. 1, 1987 Apr. 17, 2000 Dec. 1, 2000 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources. The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. A treating physician affords an example. Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489 (1962). Whether he must first relate his observations is treated in Rule 705. The second source, presentation at the trial, also reflects existing practice. The technique may be the familiar hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. Problems of determining what testimony the expert relied upon, when the latter technique is employed and the testimony is in conflict, may be resolved by resort to Rule 705. The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes. Rheingold, supra The rule also offers a more satisfactory basis for ruling upon the admissibility of public opinion poll evidence. Attention is directed to the validity of the techniques employed rather than to relatively fruitless inquiries whether hearsay is involved. See Judge Feinbergs careful analysis in Zippo Mfg. Co. v. Rogers Imports, Inc If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data be of a type reasonably relied upon by experts in the particular field. The language would not warrant admitting in evidence the opinion of an accidentologist as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied. See Comment, Cal.Law Rev.Commn, Recommendation Proposing an Evidence Code 148150 (1965). Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2000 Amendment Rule 703 has been amended to emphasize that when an expert reasonably relies on inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted. Courts have reached different results on how to treat inadmissible information when it is reasonably relied upon by an expert in forming an opinion or drawing an inference. Compare United States v. Rollins with United States v. 0.59 Acres of Land See, e.g Policing the Bases of Modern Expert Testimony Inadmissible Evidence as a Basis for Expert Testimony: A Response to Professor Carlson When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an experts opinion, a trial court applying this Rule must consider the informations probative value in assisting the jury to weigh the experts opinion on the one hand, and the risk of prejudice resulting from the jurys potential misuse of the information for substantive purposes on the other. The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information in assisting the jury to evaluate the experts opinion substantially outweighs its prejudicial effect. If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes. See The amendment governs only the disclosure to the jury of information that is reasonably relied on by an expert, when that information is not admissible for substantive purposes. It is not intended to affect the admissibility of an experts testimony. Nor does the amendment prevent an expert from relying on information that is inadmissible for substantive purposes. Nothing in this Rule restricts the presentation of underlying expert facts or data when offered by an adverse party. See This amendment covers facts or data that cannot be admitted for any purpose other than to assist the jury to evaluate the experts opinion. The balancing test provided in this amendment is not applicable to facts or data that are admissible for any other purpose but have not yet been offered for such a purpose at the time the expert testifies. The amendment provides a presumption against disclosure to the jury of information used as the basis of an experts opinion and not admissible for any substantive purpose, when that information is offered by the proponent of the expert. In a multi-party case, where one party proffers an expert whose testimony is also beneficial to other parties, each such party should be deemed a proponent within the meaning of the amendment. GAP ReportProposed Amendment to Rule 703 1. A minor stylistic change was made in the text, in accordance with the suggestion of the Style Subcommittee of the Standing Committee on Rules of Practice and Procedure. 2. The words in assisting the jury to evaluate the experts opinion were added to the text, to specify the proper purpose for offering the otherwise inadmissible information relied on by an expert. The Committee Note was revised to accord with this change in the text. 3. Stylistic changes were made to the Committee Note. 4. The Committee Note was revised to emphasize that the balancing test set forth in the proposal should be used to determine whether an experts basis may be disclosed to the jury either (1) in rebuttal or (2) on direct examination to remove the sting of an opponents anticipated attack on an experts basis. Committee Notes on Rules2011 Amendment The language of Rule 703 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. The Committee deleted all reference to an inference on the grounds that the deletion made the Rule flow better and easier to read, and because any inference is covered by the broader term opinion. Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended. Rule 704. Opinion on an Ultimate Issue (a) In GeneralNot Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1937 Pub. L. 98473, title II,  406 Oct. 12, 1984 98 Stat. 2067 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt on the subject, the so-called ultimate issue rule is specifically abolished by the instant rule. The older cases often contained strictures against allowing witnesses to express opinions upon ultimate issues, as a particular aspect of the rule against opinions. The rule was unduly restrictive, difficult of application, and generally served only to deprive the trier of fact of useful information. 7 Wigmore  1920, 1921; McCormick  12. The basis usually assigned for the rule, to prevent the witness from usurping the province of the jury, is aptly characterized as empty rhetoric. 7 Wigmore  1920, p. 17. Efforts to meet the felt needs of particular situations led to odd verbal circumlocutions which were said not to violate the rule. Thus a witness could express his estimate of the criminal responsibility of an accused in terms of sanity or insanity, but not in terms of ability to tell right from wrong or other more modern standard. And in cases of medical causation, witnesses were sometimes required to couch their opinions in cautious phrases of might or could, rather than did, though the result was to deprive many opinions of the positiveness to which they were entitled, accompanied by the hazard of a ruling of insufficiency to support a verdict. In other instances the rule was simply disregarded, and, as concessions to need, opinions were allowed upon such matters as intoxication, speed, handwriting, and value, although more precise coincidence with an ultimate issue would scarcely be possible. Many modern decisions illustrate the trend to abandon the rule completely. People v. Wilson Clifford-Jacobs Forging Co. v. Industrial Comm Dowling v. L. H. Shattuck, Inc Schweiger v. Solbeck The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, Did T have capacity to make a will? would be excluded, while the question, Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution? would be allowed. McCormick  12. For similar provisions see Uniform Rule 56(4); California Evidence Code  805; Kansas Code of Civil Procedures  60456(d); New Jersey Evidence Rule 56(3). Committee Notes on Rules2011 Amendment The language of Rule 704 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. The Committee deleted all reference to an inference on the grounds that the deletion made the Rule flow better and easier to read, and because any inference is covered by the broader term opinion. Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended. Amendment by Public Law 1984 Pub. L. 98473 Rule 705. Disclosing the Facts or Data Underlying an Experts Opinion  Unless the court orders otherwise, an expert may state an opinionand give the reasons for itwithout first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1938 Mar. 2, 1987 Oct. 1, 1987 Apr. 22, 1993 Dec. 1, 1993 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The hypothetical question has been the target of a great deal of criticism as encouraging partisan bias, affording an opportunity for summing up in the middle of the case, and as complex and time consuming. Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426427 (1952). While the rule allows counsel to make disclosure of the underlying facts or data as a preliminary to the giving of an expert opinion, if he chooses, the instances in which he is required to do so are reduced. This is true whether the expert bases his opinion on data furnished him at secondhand or observed by him at firsthand. The elimination of the requirement of preliminary disclosure at the trial of underlying facts or data has a long background of support. In 1937 the Commissioners on Uniform State Laws incorporated a provision to this effect in the Model Expert Testimony Act, which furnished the basis for Uniform Rules 57 and 58. Rule 4515, N.Y. CPLR (McKinney 1963), provides:  Unless the court orders otherwise, questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based. Upon cross-examination, he may be required to specify the data * * *, See also California Evidence Code  802; Kansas Code of Civil Procedure  60456, 60457; New Jersey Evidence Rules 57, 58. If the objection is made that leaving it to the cross-examiner to bring out the supporting data is essentially unfair, the answer is that he is under no compulsion to bring out any facts or data except those unfavorable to the opinion. The answer assumes that the cross-examiner has the advance knowledge which is essential for effective cross-examination. This advance knowledge has been afforded, though imperfectly, by the traditional foundation requirement. Rule 26(b)(4) of the Rules of Civil Procedure, as revised, provides for substantial discovery in this area, obviating in large measure the obstacles which have been raised in some instances to discovery of findings, underlying data, and even the identity of the experts. Friedenthal, Discovery and Use of an Adverse Partys Expert Information, 14 Stan.L.Rev. 455 (1962). These safeguards are reinforced by the discretionary power of the judge to require preliminary disclosure in any event. Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment This rule, which relates to the manner of presenting testimony at trial, is revised to avoid an arguable conflict with revised Rules 26(a)(2)(B) and 26(e)(1) of the Federal Rules of Civil Procedure or with revised Rule 16 of the Federal Rules of Criminal Procedure, which require disclosure in advance of trial of the basis and reasons for an experts opinions. If a serious question is raised under Rule 702 or 703 as to the admissibility of expert testimony, disclosure of the underlying facts or data on which opinions are based may, of course, be needed by the court before deciding whether, and to what extent, the person should be allowed to testify. This rule does not preclude such an inquiry. Committee Notes on Rules2011 Amendment The language of Rule 705 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. The Committee deleted all reference to an inference on the grounds that the deletion made the Rule flow better and easier to read, and because any inference is covered by the broader term opinion. Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference. No change in current practice is intended. Rule 706. Court-Appointed Expert Witnesses (a) Appointment Process. On a partys motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act. (b) Experts Role. The court must inform the expert of the experts duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert: (1) must advise the parties of any findings the expert makes; (2) may be deposed by any party; (3) may be called to testify by the court or any party; and (4) may be cross-examined by any party, including the party that called the expert. (c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows: (1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and (2) in any other civil case, by the parties in the proportion and at the time that the court directsand the compensation is then charged like other costs. (d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert. (e) Parties Choice of Their Own Experts. This rule does not limit a party in calling its own experts. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1938 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The practice of shopping for experts, the venality of some experts, and the reluctance of many reputable experts to involve themselves in litigation, have been matters of deep concern. Though the contention is made that court appointed experts acquire an aura of infallibility to which they are not entitled. Levy, Impartial Medical TestimonyRevisited, 34 Temple L.Q. 416 (1961), the trend is increasingly to provide for their use. While experience indicates that actual appointment is a relatively infrequent occurrence, the assumption may be made that the availability of the procedure in itself decreases the need for resorting to it. The ever-present possibility that the judge may appoint an expert in a given case must inevitably exert a sobering effect on the expert witness of a party and upon the person utilizing his services. The inherent power of a trial judge to appoint an expert of his own choosing is virtually unquestioned. Scott v. Spanjer Bros., Inc Danville Tobacco Assn. v. Bryant-Buckner Associates, Inc Id The New York plan is well known and is described in Report by Special Committee of the Association of the Bar of the City of New York: Impartial Medical Testimony (1956). On recommendation of the Section of Judicial Administration, local adoption of an impartial medical plan was endorsed by the American Bar Association. 82 A.B.A.Rep. 184185 (1957). Descriptions and analyses of plans in effect in various parts of the country are found in Van Dusen, A United States District Judges View of the Impartial Medical Expert System, 322 F.R.D. 498 (1963); Wick and Kightlinger, Impartial Medical Testimony Under the Federal Civil Rules: A Tale of Three Doctors, 34 Ins. Counsel J. 115 (1967); and numerous articles collected in Klein, Judicial Administration and the Legal Profession 393 (1963). Statutes and rules include California Evidence Code  730733; Illinois Supreme Court Rule 215(d), Ill.Rev.Stat.1969, c. 110A,  215(d); Burns Indiana Stats. 1956,  91702; Wisconsin Stats.Annot.1958,  957.27. In the federal practice, a comprehensive scheme for court appointed experts was initiated with the adoption of Rule 28 of the Federal Rules of Criminal Procedure in 1946. The Judicial Conference of the United States in 1953 considered court appointed experts in civil cases, but only with respect to whether they should be compensated from public funds, a proposal which was rejected. Report of the Judicial Conference of the United States 23 (1953). The present rule expands the practice to include civil cases. Subdivision (a) Subdivision (b) l Subdivision (c) Subdivision (d) Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 706 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. ARTICLE VIII. HEARSAY Notes of Advisory Committee on Proposed Rules Introductory Note: The Hearsay Problem The factors to be considered in evaluating the testimony of a witness are perception, memory, and narration. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948), Selected Writings on Evidence and Trial 764, 765 (Fryer ed. 1957); Shientag, Cross-ExaminationA Judges Viewpoint, 3 Record 12 (1948); Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 485 (1937), Selected Writings, supra In order to encourage the witness to do his best with respect to each of these factors, and to expose any inaccuracies which may enter in, the Anglo-American tradition has evolved three conditions under which witnesses will ideally be required to testify: (1) under oath, (2) in the personal presence of the trier of fact, (3) subject to cross-examination. (1) Standard procedure calls for the swearing of witnesses. While the practice is perhaps less effective than in an earlier time, no disposition to relax the requirement is apparent, other than to allow affirmation by persons with scruples against taking oaths. (2) The demeanor of the witness traditionally has been believed to furnish trier and opponent with valuable clues. Universal Camera Corp. v. N.L.R.B (3) Emphasis on the basis of the hearsay rule today tends to center upon the condition of cross-examination. All may not agree with Wigmore that cross-examination is beyond doubt the greatest legal engine ever invented for the discovery of truth, but all will agree with his statement that it has become a vital feature of the Anglo-American system. 5 Wigmore  1367, p. 29. The belief, or perhaps hope, that cross-examination is effective in exposing imperfections of perception, memory, and narration is fundamental. Morgan, Foreword to Model Code of Evidence 37 (1942). The logic of the preceding discussion might suggest that no testimony be received unless in full compliance with the three ideal conditions. No one advocates this position. Common sense tells that much evidence which is not given under the three conditions may be inherently superior to much that is. Moreover, when the choice is between evidence which is less than best and no evidence at all, only clear folly would dictate an across-the-board policy of doing without. The problem thus resolves itself into effecting a sensible accommodation between these considerations and the desirability of giving testimony under the ideal conditions. The solution evolved by the common law has been a general rule excluding hearsay but subject to numerous exceptions under circumstances supposed to furnish guarantees of trustworthiness. Criticisms of this scheme are that it is bulky and complex, fails to screen good from bad hearsay realistically, and inhibits the growth of the law of evidence. Since no one advocates excluding all hearsay, three possible solutions may be considered: (1) abolish the rule against hearsay and admit all hearsay; (2) admit hearsay possessing sufficient probative force, but with procedural safeguards; (3) revise the present system of class exceptions. (1) Abolition of the hearsay rule would be the simplest solution. The effect would not be automatically to abolish the giving of testimony under ideal conditions. If the declarant were available, compliance with the ideal conditions would be optional with either party. Thus the proponent could call the declarant as a witness as a form of presentation more impressive than his hearsay statement. Or the opponent could call the declarant to be cross-examined upon his statement. This is the tenor of Uniform Rule 63(1), admitting the hearsay declaration of a person who is present at the hearing and available for cross-examination. Compare the treatment of declarations of available declarants in Rule 801(d)(1) of the instant rules. If the declarant were unavailable, a rule of free admissibility would make no distinctions in terms of degrees of noncompliance with the ideal conditions and would exact no liquid pro quo in the form of assurances of trustworthiness. Rule 503 of the Model Code did exactly that, providing for the admissibility of any hearsay declaration by an unavailable declarant, finding support in the Massachusetts act of 1898, enacted at the instance of Thayer, Mass.Gen.L.1932, c. 233  65, and in the English act of 1938, St.1938, c. 28, Evidence. Both are limited to civil cases. The draftsmen of the Uniform Rules chose a less advanced and more conventional position. Comment, Uniform Rule 63. The present Advisory Committee has been unconvinced of the wisdom of abandoning the traditional requirement of some particular assurance of credibility as a condition precedent to admitting the hearsay declaration of an unavailable declarant. In criminal cases, the Sixth Amendment requirement of confrontation would no doubt move into a large part of the area presently occupied by the hearsay rule in the event of the abolition of the latter. The resultant split between civil and criminal evidence is regarded as an undesirable development. (2) Abandonment of the system of class exceptions in favor of individual treatment in the setting of the particular case, accompanied by procedural safeguards, has been impressively advocated. Weinstein, The Probative Force of Hearsay, 46 Iowa L.Rev. 331 (1961). Admissibility would be determined by weighing the probative force of the evidence against the possibility of prejudice, waste of time, and the availability of more satisfactory evidence. The bases of the traditional hearsay exceptions would be helpful in assessing probative force. Ladd, The Relationship of the Principles of Exclusionary Rules of Evidence to the Problem of Proof, 18 Minn.L.Rev. 506 (1934). Procedural safeguards would consist of notice of intention to use hearsay, free comment by the judge on the weight of the evidence, and a greater measure of authority in both trial and appellate judges to deal with evidence on the basis of weight. The Advisory Committee has rejected this approach to hearsay as involving too great a measure of judicial discretion, minimizing the predictability of rulings, enhancing the difficulties of preparation for trial, adding a further element to the already over-complicated congeries of pre-trial procedures, and requiring substantially different rules for civil and criminal cases. The only way in which the probative force of hearsay differs from the probative force of other testimony is in the absence of oath, demeanor, and cross-examination as aids in determining credibility. For a judge to exclude evidence because he does not believe it has been described as altogether atypical, extraordinary. * * * Chadbourn, Bentham and the Hearsay RuleA Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence, 75 Harv.L.Rev. 932, 947 (1962). (3) The approach to hearsay in these rules is that of the common law, i.e., a general rule excluding hearsay, with exceptions under which evidence is not required to be excluded even though hearsay. The traditional hearsay exceptions are drawn upon for the exceptions, collected under two rules, one dealing with situations where availability of the declarant is regarded as immaterial and the other with those where unavailability is made a condition to the admission of the hearsay statement. Each of the two rules concludes with a provision for hearsay statements not within one of the specified exceptions but having comparable circumstantial guarantees of trustworthiness. Rules 803(24) and 804(b)(6). This plan is submitted as calculated to encourage growth and development in this area of the law, while conserving the values and experience of the past as a guide to the future.  Confrontation and Due Process Until very recently, decisions invoking the confrontation clause of the Sixth Amendment were surprisingly few, a fact probably explainable by the former inapplicability of the clause to the states and by the hearsay rules occupancy of much the same ground. The pattern which emerges from the earlier cases invoking the clause is substantially that of the hearsay rule, applied to criminal cases: an accused is entitled to have the witnesses against him testify under oath, in the presence of himself and trier, subject to cross-examination; yet considerations of public policy and necessity require the recognition of such exceptions as dying declarations and former testimony of unavailable witnesses. Mattox v. United States Motes v. United States Delaney v. United States Snyder v. Massachusetts Snyder Bridges v. Wixon In re Oliver United States v. Nugent Stein v. New York Greene v. McElroy Willner v. Committee on Character In 1965 the confrontation clause was held applicable to the states. Pointer v. Texas Douglas v. Alabama Brookhart v. Janis The pattern suggested in Douglas United States v. Wade Gilbert v. California United States v. Wade, supra Wade Gilbert Parker v. Gladden Under the earlier cases, the confrontation clause may have been little more than a constitutional embodiment of the hearsay rule, even including traditional exceptions but with some room for expanding them along similar lines. But under the recent cases the impact of the clause clearly extends beyond the confines of the hearsay rule. These considerations have led the Advisory Committee to conclude that a hearsay rule can function usefully as an adjunct to the confrontation right in constitutional areas and independently in nonconstitutional areas. In recognition of the separateness of the confrontation clause and the hearsay rule, and to avoid inviting collisions between them or between the hearsay rule and other exclusionary principles, the exceptions set forth in Rules 803 and 804 are stated in terms of exemption from the general exclusionary mandate of the hearsay rule, rather than in positive terms of admissibility. See Uniform Rule 63(1) to (31) and California Evidence Code  12001340. Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay (a) Statement. Statement means a persons oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. (b) Declarant. Declarant means the person who made the statement. (c) Hearsay. Hearsay means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1)  A Declarant-Witnesss Prior Statement. (A) is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarants testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarants credibility as a witness when attacked on another ground; or (C) identifies a person as someone the declarant perceived earlier. (2)  An Opposing Partys Statement. (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the partys agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the partys coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarants authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E). ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1938 Pub. L. 94113,  1 Oct. 16, 1975 89 Stat. 576 Mar. 2, 1987 Oct. 1, 1987 Apr. 11, 1997 Dec. 1, 1997 Apr. 26, 2011 Dec. 1, 2011 Apr. 25, 2014 Dec. 1, 2014  Notes of Advisory Committee on Proposed Rules Subdivision (a) It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of statement. Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L. Rev. 177, 214, 217 (1948), and the elaboration in Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682 (1962). Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Falknor, The Hear-Say Rule as a See-Do Rule: Evidence of Conduct, 33 Rocky Mt.L.Rev. 133 (1961). Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c). When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions of fact. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand.L.Rev. 741, 765767 (1961). For similar approaches, see Uniform Rule 62(1); California Evidence Code  225, 1200; Kansas Code of Civil Procedure  60459(a); New Jersey Evidence Rule 62(1) Subdivision (c) id Emich Motors Corp. v. General Motors Corp The definition of hearsay must, of course, be read with reference to the definition of statement set forth in subdivision (a). Testimony given by a witness in the course of court proceedings is excluded since there is compliance with all the ideal conditions for testifying. Subdivision (d) (1) Prior statement by witness Bridges v. Wixon State v. Saporen Ruhala v. Roby People v. Johnson Di Carlo v. United States The position taken by the Advisory Committee in formulating this part of the rule is founded upon an unwillingness to countenance the general use of prior prepared statements as substantive evidence, but with a recognition that particular circumstances call for a contrary result. The judgment is one more of experience than of logic. The rule requires in each instance, as a general safeguard, that the declarant actually testify as a witness, and it then enumerates three situations in which the statement is excepted from the category of hearsay. Compare Uniform Rule 63(1) which allows any out-of-court statement of a declarant who is present at the trial and available for cross-examination. (A) Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence. Under the rule they are substantive evidence. As has been said by the California Law Revision Commission with respect to a similar provision: Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. Moreover, Section 1235 will provide a party with desirable protection against the turncoat witness who changes his story on the stand and deprives the party calling him of evidence essential to his case. Comment, California Evidence Code  1235. See also McCormick  39. The Advisory Committee finds these views more convincing than those expressed in People v. Johnson California v. Green (B) Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence. The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally. (C) The admission of evidence of identification finds substantial support, although it falls beyond a doubt in the category of prior out-of-court statements. Illustrative are People v. Gould Judy v. State State v. Simmons Gilbert v. California There is a split among the States concerning the admissibility of prior extra-judicial identifications, as independent evidence of identity, both by the witness and third parties present at the prior identification. See 71 ALR2d 449. It has been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at the trial. See 5 ALR2d Later Case Service 12251228. * * * 388 U.S. at 272, n. 3, 87 S.Ct. at 1956. (2) Admissions The rule specifies five categories of statements for which the responsibility of a party is considered sufficient to justify reception in evidence against him: (A) A partys own statement is the classic example of an admission. If he has a representative capacity and the statement is offered against him in that capacity, no inquiry whether he was acting in the representative capacity in making the statement is required; the statement need only be relevant to represent affairs. To the same effect in California Evidence Code  1220. Compare Uniform Rule 63(7), requiring a statement to be made in a representative capacity to be admissible against a party in a representative capacity. (B) Under established principles an admission may be made by adopting or acquiescing in the statement of another. While knowledge of contents would ordinarily be essential, this is not inevitably so: X is a reliable person and knows what he is talking about. See McCormick  246, p. 527, n. 15. Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior. In civil cases, the results have generally been satisfactory. In criminal cases, however, troublesome questions have been raised by decisions holding that failure to deny is an admission: the inference is a fairly weak one, to begin with; silence may be motivated by advice of counsel or realization that anything you say may be used against you; unusual opportunity is afforded to manufacture evidence; and encroachment upon the privilege against self-incrimination seems inescapably to be involved. However, recent decisions of the Supreme Court relating to custodial interrogation and the right to counsel appear to resolve these difficulties. Hence the rule contains no special provisions concerning failure to deny in criminal cases. (C) No authority is required for the general proposition that a statement authorized by a party to be made should have the status of an admission by the party. However, the question arises whether only statements to third persons should be so regarded, to the exclusion of statements by the agent to the principal. The rule is phrased broadly so as to encompass both. While it may be argued that the agent authorized to make statements to his principal does not speak for him, Morgan, Basic Problems of Evidence 273 (1962), communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a partys books or records are usable against him, without regard to any intent to disclose to third persons. 5 Wigmore  1557. See also McCormick  78, pp. 159161. In accord is New Jersey Evidence Rule 63(8)(a). Cf. Uniform Rule 63(8)(a) and California Evidence Code  1222 which limit status as an admission in this regard to statements authorized by the party to be made for him, which is perhaps an ambiguous limitation to statements to third persons. Falknor, Vicarious Admissions and the Uniform Rules, 14 Vand.L. Rev. 855, 860861 (1961). (D) The tradition has been to test the admissibility of statements by agents, as admissions, by applying the usual test of agency. Was the admission made by the agent acting in the scope of his employment? Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion of the statement. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment. Grayson v. Williams Koninklijke Luchtvaart Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller Martin v. Savage Truck Lines, Inc Northern Oil Co. v. Socony Mobile Oil Co (E) The limitation upon the admissibility of statements of co-conspirators to those made during the course and in furtherance of the conspiracy is in the accepted pattern. While the broadened view of agency taken in item (iv) might suggest wider admissibility of statements of co-conspirators, the agency theory of conspiracy is at best a fiction and ought not to serve as a basis for admissibility beyond that already established. See Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159 (1954); Comment, 25 U.Chi.L.Rev. 530 (1958). The rule is consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved. Krulewitch v. United States Wong Sun v. United States Notes of Committee on the Judiciary, House Report No. 93650 Present federal law, except in the Second Circuit, permits the use of prior inconsistent statements of a witness for impeachment only. Rule 801(d)(1) as proposed by the Court would have permitted all such statements to be admissible as substantive evidence, an approach followed by a small but growing number of State jurisdictions and recently held constitutional in California v. Green United States v. Anderson United States v. DeSisto United States v. Cunningham Notes of Committee on the Judiciary, Senate Report No. 931277 Rule 801 defines what is and what is not hearsay for the purpose of admitting a prior statement as substantive evidence. A prior statement of a witness at a trial or hearing which is inconsistent with his testimony is, of course, always admissible for the purpose of impeaching the witness credibility. As submitted by the Supreme Court, subdivision (d)(1)(A) made admissible as substantive evidence the prior statement of a witness inconsistent with his present testimony. The House severely limited the admissibility of prior inconsistent statements by adding a requirement that the prior statement must have been subject to cross-examination, thus precluding even the use of grand jury statements. The requirement that the prior statement must have been subject to cross-examination appears unnecessary since this rule comes into play only when the witness testifies in the present trial. At that time, he is on the stand and can explain an earlier position and be cross-examined as to both. The requirement that the statement be under oath also appears unnecessary. Notwithstanding the absence of an oath contemporaneous with the statement, the witness, when on the stand, qualifying or denying the prior statement, is under oath. In any event, of all the many recognized exceptions to the hearsay rule, only one (former testimony) requires that the out-of-court statement have been made under oath. With respect to the lack of evidence of the demeanor of the witness at the time of the prior statement, it would be difficult to improve upon Judge Learned Hands observation that when the jury decides that the truth is not what the witness says now but what he said before, they are still deciding from what they see and hear in court [ Di Carlo v. U.S The rule as submitted by the Court has positive advantages. The prior statement was made nearer in time to the events, when memory was fresher and intervening influences had not been brought into play. A realistic method is provided for dealing with the turncoat witness who changes his story on the stand [see Comment, California Evidence Code  1235; McCormick, Evidence,  38 (2nd ed. 1972)]. New Jersey, California, and Utah have adopted a rule similar to this one; and Nevada, New Mexico, and Wisconsin have adopted the identical Federal rule. For all of these reasons, we think the House amendment should be rejected and the rule as submitted by the Supreme Court reinstated. [It would appear that some of the opposition to this Rule is based on a concern that a person could be convicted solely upon evidence admissible under this Rule. The Rule, however, is not addressed to the question of the sufficiency of evidence to send a case to the jury, but merely as to its admissibility. Factual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate]. As submitted by the Supreme Court and as passed by the House, subdivision (d)(1)(c) of rule 801 made admissible the prior statement identifying a person made after perceiving him. The committee decided to delete this provision because of the concern that a person could be convicted solely upon evidence admissible under this subdivision. The House approved the long-accepted rule that a statement by a coconspirator of a party during the course and in furtherance of the conspiracy is not hearsay as it was submitted by the Supreme Court. While the rule refers to a coconspirator, it is this committees understanding that the rule is meant to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purposes of this rule even though no conspiracy has been charged. United States v. Rinaldi United States v. Spencer Notes of Conference Committee, House Report No. 931597 Rule 801 supplies some basic definitions for the rules of evidence that deal with hearsay. Rule 801(d)(1) defines certain statements as not hearsay. The Senate amendments make two changes in it. The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and if the statement is inconsistent with his testimony and was given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition. The Senate amendment drops the requirement that the prior statement be given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition. The Conference adopts the Senate amendment with an amendment, so that the rule now requires that the prior inconsistent statement be given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. The rule as adopted covers statements before a grand jury. Prior inconsistent statements may, of course, be used for impeaching the credibility of a witness. When the prior inconsistent statement is one made by a defendant in a criminal case, it is covered by Rule 801(d)(2). The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving him. The Senate amendment eliminated this provision. The Conference adopts the Senate amendment. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1997 Amendment Rule 801(d)(2) has been amended in order to respond to three issues raised by Bourjaily v. United States Bourjaily Bourjaily Second, the amendment resolves an issue on which the Court had reserved decision. It provides that the contents of the declarants statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated. The court must consider in addition the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question. This amendment is in accordance with existing practice. Every court of appeals that has resolved this issue requires some evidence in addition to the contents of the statement. See, e.g., United States v. Beckham United States v. Sepulveda cert. denied United States v. Daly cert. denied United States v. Clark cert. denied United States v. Zambrana United States v. Silverman United States v. Gordon United States v. Hernandez cert. denied United States v. Byrom Third, the amendment extends the reasoning of Bourjaily Bourjaily GAP Report on Rule 801 Committee Notes on Rules2011 Amendment The language of Rule 801 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Statements falling under the hearsay exclusion provided by Rule 801(d)(2) are no longer referred to as admissions in the title to the subdivision. The term admissions is confusing because not all statements covered by the exclusion are admissions in the colloquial sensea statement can be within the exclusion even if it admitted nothing and was not against the partys interest when made. The term admissions also raises confusion in comparison with the Rule 804(b)(3) exception for declarations against interest. No change in application of the exclusion is intended. Committee Notes on Rules2014 Amendment Rule 801(d)(1)(B), as originally adopted, provided for substantive use of certain prior consistent statements of a witness subject to cross-examination. As the Advisory Committee noted, [t]he prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally. Though the original Rule 801(d)(1)(B) provided for substantive use of certain prior consistent statements, the scope of that Rule was limited. The Rule covered only those consistent statements that were offered to rebut charges of recent fabrication or improper motive or influence. The Rule did not, for example, provide for substantive admissibility of consistent statements that are probative to explain what otherwise appears to be an inconsistency in the witnesss testimony. Nor did it cover consistent statements that would be probative to rebut a charge of faulty memory. Thus, the Rule left many prior consistent statements potentially admissible only for the limited purpose of rehabilitating a witnesss credibility. The original Rule also led to some conflict in the cases; some courts distinguished between substantive and rehabilitative use for prior consistent statements, while others appeared to hold that prior consistent statements must be admissible under Rule 801(d)(1)(B) or not at all. The amendment retains the requirement set forth in Tome v. United States The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make any consistent statement admissible that was not admissible previouslythe only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well. Changes Made After Publication and Comment Amendment by Public Law 1975Subd. (d)(1). Pub. L. 94113 Effective Date of 1975 Amendment Pub. L. 94113,  2 Oct. 16, 1975 89 Stat. 576 This Act [enacting subd. (d)(1)(C)] shall become effective on the fifteenth day after the date of the enactment of this Act [ Oct. 16, 1975 Rule 802. The Rule Against Hearsay  Hearsay is not admissible unless any of the following provides otherwise:  a federal statute;  these rules; or  other rules prescribed by the Supreme Court. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1939 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The provision excepting from the operation of the rule hearsay which is made admissible by other rules adopted by the Supreme Court or by Act of Congress continues the admissibility thereunder of hearsay which would not qualify under these Evidence Rules. The following examples illustrate the working of the exception: Federal Rules of Civil Procedure Rule 4(g): proof of service by affidavit. Rule 32: admissibility of depositions. Rule 43(e): affidavits when motion based on facts not appearing of record. Rule 56: affidavits in summary judgment proceedings. Rule 65(b): showing by affidavit for temporary restraining order. Federal Rules of Criminal Procedure Rule 4(a): affidavits to show grounds for issuing warrants. Rule 12(b)(4): affidavits to determine issues of fact in connection with motions. Acts of Congress 10 U.S.C.  7730: affidavits of unavailable witnesses in actions for damages caused by vessel in naval service, or towage or salvage of same, when taking of testimony or bringing of action delayed or stayed on security grounds. 29 U.S.C.  161(4): affidavit as proof of service in NLRB proceedings. 38 U.S.C.  5206: affidavit as proof of posting notice of sale of unclaimed property by Veterans Administration. Committee Notes on Rules2011 Amendment The language of Rule 802 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 803. Exceptions to the Rule Against HearsayRegardless of Whether the Declarant Is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1)  Present Sense Impression. (2)  Excited Utterance. (3)  Then-Existing Mental, Emotional, or Physical Condition. (4)  Statement Made for Medical Diagnosis or Treatment. (A) is made forand is reasonably pertinent tomedical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. (5)  Recorded Recollection. (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witnesss memory; and (C) accurately reflects the witnesss knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. (6)  Records of a Regularly Conducted Activity. (A) the record was made at or near the time byor from information transmitted bysomeone 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; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. (7)  Absence of a Record of a Regularly Conducted Activity. (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness. (8)  Public Records. (A) it sets out: (i) the offices activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. (9)  Public Records of Vital Statistics. (10)  Absence of a Public Record. (A) the testimony or certification is admitted to prove that (i) the record or statement does not exist; or (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the noticeunless the court sets a different time for the notice or the objection. (11)  Records of Religious Organizations Concerning Personal or Family History. (12)  Certificates of Marriage, Baptism, and Similar Ceremonies. (A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it. (13)  Family Records. (14)  Records of Documents That Affect an Interest in Property. (A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; (B) the record is kept in a public office; and (C) a statute authorizes recording documents of that kind in that office. (15)  Statements in Documents That Affect an Interest in Property. (16)  Statements in Ancient Documents. January 1, 1998 (17)  Market Reports and Similar Commercial Publications. (18)  Statements in Learned Treatises, Periodicals, or Pamphlets. (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the experts admission or testimony, by another experts testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. (19)  Reputation Concerning Personal or Family History. (20)  Reputation Concerning Boundaries or General History. (21)  Reputation Concerning Character. (22)  Judgment of a Previous Conviction. (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea; (B) the conviction was for a crime punishable by death or by imprisonment for more than a year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. The pendency of an appeal may be shown but does not affect admissibility. (23)  Judgments Involving Personal, Family, or General History, or a Boundary. (A) was essential to the judgment; and (B) could be proved by evidence of reputation. (24)  [ Other Exceptions. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1939 Pub. L. 94149,  1(11) Dec. 12, 1975 89 Stat. 805 Mar. 2, 1987 Oct. 1, 1987 Apr. 11, 1997 Dec. 1, 1997 Apr. 17, 2000 Dec. 1, 2000 Apr. 26, 2011 Dec. 1, 2011 Apr. 13, 2013 Dec. 1, 2013 Apr. 25, 2014 Dec. 1, 2014 Apr. 27, 2017 Dec. 1, 2017  Notes of Advisory Committee on Proposed Rules The exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration. The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available. The theory finds vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor. The present rule is a synthesis of them, with revision where modern developments and conditions are believed to make that course appropriate. In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge. It may appear from his statement or be inferable from circumstances. See Rule 602. Exceptions (1) and (2). In considerable measure these two examples overlap, though based on somewhat different theories. The most significant practical difference will lie in the time lapse allowable between event and statement. The underlying theory of Exception [paragraph] (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate of conscious misrepresentation. Moreover, if the witness is the declarant, he may be examined on the statement. If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement. Morgan, Basic Problems of Evidence 340341 (1962). The theory of Exception [paragraph] (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. 6 Wigmore  1747, p. 135. Spontaneity is the key factor in each instance, though arrived at by somewhat different routes. Both are needed in order to avoid needless niggling. While the theory of Exception [paragraph] (2) has been criticized on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication, Hutchins and Slesinger, Some Observations on the Law of Evidence: Spontaneous Exclamations, 28 Colum.L.Rev. 432 (1928), it finds support in cases without number. See cases in 6 Wigmore  1750; Annot., 53 A.L.R.2d 1245 (statements as to cause of or responsibility for motor vehicle accident); Annot., 4 A.L.R.3d 149 (accusatory statements by homicide victims). Since unexciting events are less likely to evoke comment, decisions involving Exception [paragraph] (1) are far less numerous. Illustrative are Tampa Elec. Co. v. Getrost Houston Oxygen Co. v. Davis With respect to the time element Participation supra supra Whether proof of the startling event Insurance Co. v. Mosely Wheeler v. United States Wetherbee v. Safety Casualty Co Lampe v. United States supra Armour & Co. v. Industrial Commission Young v. Stewart Proof of declarants perception by his statement presents similar considerations when declarant is identified. People v. Poland Garrett v. Howden Beck v. Dye Permissible subject matter Sanitary Grocery Co. v. Snead Murphy Auto Parts Co., Inc. v. Ball Similar provisions are found in Uniform Rule 63(4)(a) and (b); California Evidence Code  1240 (as to Exception (2) only); Kansas Code of Civil Procedure  60460(d)(1) and (2); New Jersey Evidence Rule 63(4). Exception (3) is essentially a specialized application of Exception [paragraph] (1), presented separately to enhance its usefulness and accessibility. See McCormick  265, 268. The exclusion of statements of memory or belief to prove the fact remembered or believed is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind). Shepard v. United States Mutual Life Ins. Co. v. Hillman The carving out, from the exclusion mentioned in the preceding paragraph, of declarations relating to the execution, revocation, identification, or terms of declarants will represents an ad hoc Exception (4). Even those few jurisdictions which have shied away from generally admitting statements of present condition have allowed them if made to a physician for purposes of diagnosis and treatment in view of the patients strong motivation to be truthful. McCormick  266, p. 563. The same guarantee of trustworthiness extends to statements of past conditions and medical history, made for purposes of diagnosis or treatment. It also extends to statements as to causation, reasonably pertinent to the same purposes, in accord with the current trend, Shell Oil Co. v. Industrial Commission Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify. While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation. This position is consistent with the provision of Rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field. Exception (5). A hearsay exception for recorded recollection is generally recognized and has been described as having long been favored by the federal and practically all the state courts that have had occasion to decide the question. United States v. Kelly Owens v. State The principal controversy attending the exception has centered, not upon the propriety of the exception itself, but upon the question whether a preliminary requirement of impaired memory on the part of the witness should be imposed. The authorities are divided. If regard be had only to the accuracy of the evidence, admittedly impairment of the memory of the witness adds nothing to it and should not be required. McCormick  277, p. 593; 3 Wigmore  738, p. 76; Jordan v. People Hall v. State State v. Bindhammer Vicksburg & Meridian R.R. v. OBrien Ahern v. Webb N.L.R.B. v. Hudson Pulp and Paper Corp N.L.R.B. v. Federal Dairy Co United States v. Adams No attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate. Multiple person involvement in the process of observing and recording, as in Rathbun v. Brancatella Locating the exception at this place in the scheme of the rules is a matter of choice. There were two other possibilities. The first was to regard the statement as one of the group of prior statements of a testifying witness which are excluded entirely from the category of hearsay by Rule 801(d)(1). That category, however, requires that declarant be subject to cross-examination, as to which the impaired memory aspect of the exception raises doubts. The other possibility was to include the exception among those covered by Rule 804. Since unavailability is required by that rule and lack of memory is listed as a species of unavailability by the definition of the term in Rule 804(a)(3), that treatment at first impression would seem appropriate. The fact is, however, that the unavailability requirement of the exception is of a limited and peculiar nature. Accordingly, the exception is located at this point rather than in the context of a rule where unavailability is conceived of more broadly. Exception (6) represents an area which has received much attention from those seeking to improve the law of evidence. The Commonwealth Fund Act was the result of a study completed in 1927 by a distinguished committee under the chairmanship of Professor Morgan. Morgan et al., The Law of Evidence: Some Proposals for its Reform 63 (1927). With changes too minor to mention, it was adopted by Congress in 1936 as the rule for federal courts. 28 U.S.C.  1732. A number of states took similar action. The Commissioners on Uniform State Laws in 1936 promulgated the Uniform Business Records as Evidence Act, 9A U.L.A. 506, which has acquired a substantial following in the states. Model Code Rule 514 and Uniform Rule 63(13) also deal with the subject. Difference of varying degrees of importance exist among these various treatments. These reform efforts were largely within the context of business and commercial records, as the kind usually encountered, and concentrated considerable attention upon relaxing the requirement of producing as witnesses, or accounting for the nonproduction of, all participants in the process of gathering, transmitting, and recording information which the common law had evolved as a burdensome and crippling aspect of using records of this type. In their areas of primary emphasis on witnesses to be called and the general admissibility of ordinary business and commercial records, the Commonwealth Fund Act and the Uniform Act appear to have worked well. The exception seeks to preserve their advantages. On the subject of what witnesses must be called, the Commonwealth Fund Act eliminated the common law requirement of calling or accounting for all participants by failing to mention it. United States v. Mortimer La Porte v. United States The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation. McCormick  281, 286, 287; Laughlin, Business Entries and the Like, 46 Iowa L.Rev. 276 (1961). The model statutes and rules have sought to capture these factors and to extend their impact by employing the phrase regular course of business, in conjunction with a definition of business far broader than its ordinarily accepted meaning. The result is a tendency unduly to emphasize a requirement of routineness and repetitiveness and an insistence that other types of records be squeezed into the fact patterns which give rise to traditional business records. The rule therefore adopts the phrase the course of a regularly conducted activity as capturing the essential basis of the hearsay exception as it has evolved and the essential element which can be abstracted from the various specifications of what is a business. Amplification of the kinds of activities producing admissible records has given rise to problems which conventional business records by their nature avoid. They are problems of the source of the recorded information, of entries in opinion form, of motivation, and of involvement as participant in the matters recorded. Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short in the regular course of business. If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz Gencarella v. Fyfe Gordon v. Robinson Standard Oil Co. of California v. Moore Yates v. Bair Transport, Inc Hawkins v. Gorea Motor Express, Inc Contra Entries in the form of opinions were not encountered in traditional business records in view of the purely factual nature of the items recorded, but they are now commonly encountered with respect to medical diagnoses, prognoses, and test results, as well as occasionally in other areas. The Commonwealth Fund Act provided only for records of an act, transaction, occurrence, or event, while the Uniform Act, Model Code Rule 514, and Uniform Rule 63(13) merely added the ambiguous term condition. The limited phrasing of the Commonwealth Fund Act, 28 U.S.C.  1732, may account for the reluctance of some federal decisions to admit diagnostic entries. New York Life Ins. Co. v. Taylor Lyles v. United States England v. United States Skogen v. Dow Chemical Co Reed v. Order of United Commercial Travelers Buckminsters Estate v. Commissioner of Internal Revenue Medina v. Erickson Thomas v. Hogan Glawe v. Rulon Borucki v. MacKenzie Bros. Co Allen v. St. Louis Public Service Co People v. Kohlmeyer Weis v. Weis Problems of the motivation of the informant have been a source of difficulty and disagreement. In Palmer v. Hoffman Hoffman v. Palmer Yates v. Bair Transport, Inc Korte v. New York, N.H. & H.R. Co The decisions hinge on motivation and which party is entitled to be concerned about it. Professor McCormick believed that the doctors report or the accident report were sufficiently routine to justify admissibility. McCormick  287, p. 604. Yet hesitation must be experienced in admitting everything which is observed and recorded in the course of a regularly conducted activity. Efforts to set a limit are illustrated by Hartzog v. United States United States v. Ware infra United States v. New York Foreign Trade Zone Operators Taylor v. Baltimore & O. R. Co Matthews v. United States Occasional decisions have reached for enhanced accuracy by requiring involvement as a participant in matters reported. Clainos v. United States Standard Oil Co. of California v. Moore The form which the record may assume under the rule is described broadly as a memorandum, report, record, or data compilation, in any form. The expression data compilation is used as broadly descriptive of any means of storing information other than the conventional words and figures in written or documentary form. It includes, but is by no means limited to, electronic computer storage. The term is borrowed from revised Rule 34(a) of the Rules of Civil Procedure. Exception (7). Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. Uniform Rule 63(14), Comment. While probably not hearsay as defined in Rule 801, supra Exception (8). Public records are a recognized hearsay exception at common law and have been the subject of statutes without number. McCormick  291. See, for example, 28 U.S.C.  1733, the relative narrowness of which is illustrated by its nonapplicability to nonfederal public agencies, thus necessitating report to the less appropriate business record exception to the hearsay rule. Kay v. United States Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record. Wong Wing Foo v. McGrath Chesapeake & Delaware Canal Co. v. United States (a) Cases illustrating the admissibility of records of the offices or agencys own activities are numerous. Chesapeake & Delaware Canal Co. v. United States Howard v. Perrin Ballew v. United States (b) Cases sustaining admissibility of records of matters observed are also numerous. United States v. Van Hook TKach v. United States Minnehaha County v. Kelley United States v. Meyer (c) The more controversial area of public records is that of the so-called evaluative report. The disagreement among the decisions has been due in part, no doubt, to the variety of situations encountered, as well as to differences in principle. Sustaining admissibility are such cases as United States v. Dumas McCarty v. United States Moran v. Pittsburgh-Des Moines Steel Co Franklin v. Skelly Oil Co Lomax Transp. Co. v. United States Yung Jin Teung v. Dulles Factors which may be of assistance in passing upon the admissibility of evaluative reports include; (1) the timeliness of the investigation, McCormack, Can the Courts Make Wider Use of Reports of Official Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or experience of the official, id Franklin v. Skelly Oil Co Palmer v. Hoffman The formulation of an approach which would give appropriate weight to all possible factors in every situation is an obvious impossibility. Hence the rule, as in Exception [paragraph] (6), assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present. In one respect, however, the rule with respect to evaluate reports under item (c) is very specific; they are admissible only in civil cases and against the government in criminal cases in view of the almost certain collision with confrontation rights which would result from their use against the accused in a criminal case. Exception (9). Records of vital statistics are commonly the subject of particular statutes making them admissible in evidence. Uniform Vital Statistics Act, 9C U.L.A. 350 (1957). The rule is in principle narrower than Uniform Rule 63(16) which includes reports required of persons performing functions authorized by statute, yet in practical effect the two are substantially the same. Comment Uniform Rule 63(16). The exception as drafted is in the pattern of California Evidence Code  1281. Exception (10). The principle of proving nonoccurrence of an event by evidence of the absence of a record which would regularly be made of its occurrence, developed in Exception [paragraph] (7) with respect to regularly conducted activities, is here extended to public records of the kind mentioned in Exceptions [paragraphs] (8) and (9). 5 Wigmore  1633(6), p. 519. Some harmless duplication no doubt exists with Exception [paragraph] (7). For instances of federal statutes recognizing this method of proof, see 8 U.S.C.  1284(b), proof of absence of alien crewmans name from outgoing manifest prima facie evidence of failure to detain or deport, and 42 U.S.C.  405(c)(3), (4)(B), (4)(C), absence of HEW [Department of Health, Education, and Welfare] record prima facie evidence of no wages or self-employment income. The rule includes situations in which absence of a record may itself be the ultimate focal point of inquiry, e.g. People v. Love The refusal of the common law to allow proof by certificate of the lack of a record or entry has no apparent justification, 5 Wigmore  1678(7), p. 752. The rule takes the opposite position, as do Uniform Rule 63(17); California Evidence Code  1284; Kansas Code of Civil Procedure  60460( c Exception (11). Records of activities of religious organizations are currently recognized as admissible at least to the extent of the business records exception to the hearsay rule, 5 Wigmore  1523, p. 371, and Exception [paragraph] (6) would be applicable. However, both the business record doctrine and Exception [paragraph] (6) require that the person furnishing the information be one in the business or activity. The result is such decisions as Daily v. Grand Lodge Exception (12). The principle of proof by certification is recognized as to public officials in Exceptions [paragraphs] (8) and (10), and with respect to authentication in Rule 902. The present exception is a duplication to the extent that it deals with a certificate by a public official, as in the case of a judge who performs a marriage ceremony. The area covered by the rule is, however, substantially larger and extends the certification procedure to clergymen and the like who perform marriages and other ceremonies or administer sacraments. Thus certificates of such matters as baptism or confirmation, as well as marriage, are included. In principle they are as acceptable evidence as certificates of public officers. See 5 Wigmore  1645, as to marriage certificates. When the person executing the certificate is not a public official, the self-authenticating character of documents purporting to emanate from public officials, see Rule 902, is lacking and proof is required that the person was authorized and did make the certificate. The time element, however, may safely be taken as supplied by the certificate, once authority and authenticity are established, particularly in view of the presumption that a document was executed on the date it bears. For similar rules, some limited to certificates of marriage, with variations in foundation requirements, see Uniform Rule 63(18); California Evidence Code  1316; Kansas Code of Civil Procedure  60460(p); New Jersey Evidence Rule 63(18). Exception (13). Records of family history kept in family Bibles have by long tradition been received in evidence. 5 Wigmore  1495, 1496, citing numerous statutes and decisions. See also Regulations, Social Security Administration, 20 C.F.R.  404.703(c), recognizing family Bible entries as proof of age in the absence of public or church records. Opinions in the area also include inscriptions on tombstones, publicly displayed pedigrees, and engravings on rings. Wigmore, supra Exception (14). The recording of title documents is a purely statutory development. Under any theory of the admissibility of public records, the records would be receivable as evidence of the contents of the recorded document, else the recording process would be reduced to a nullity. When, however, the record is offered for the further purpose of proving execution and delivery, a problem of lack of first-hand knowledge by the recorder, not present as to contents, is presented. This problem is solved, seemingly in all jurisdictions, by qualifying for recording only those documents shown by a specified procedure, either acknowledgement or a form of probate, to have been executed and delivered. 5 Wigmore  16471651. Thus what may appear in the rule, at first glance, as endowing the record with an effect independently of local law and inviting difficulties of an Erie Cities Service Oil Co. v. Dunlap Exception (15). Dispositive documents often contain recitals of fact. Thus a deed purporting to have been executed by an attorney in fact may recite the existence of the power of attorney, or a deed may recite that the grantors are all the heirs of the last record owner. Under the rule, these recitals are exempted from the hearsay rule. The circumstances under which dispositive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness, particularly in view of the nonapplicability of the rule if dealings with the property have been inconsistent with the document. The age of the document is of no significance, though in practical application the document will most often be an ancient one. See Uniform Rule 63(29), Comment. Similar provisions are contained in Uniform Rule 63(29); California Evidence Code  1330; Kansas Code of Civil Procedure  60460(aa); New Jersey Evidence Rule 63(29). Exception (16). Authenticating a document as ancient, essentially in the pattern of the common law, as provided in Rule 901(b)(8), leaves open as a separate question the admissibility of assertive statements contained therein as against a hearsay objection. 7 Wigmore  2145a. Wigmore further states that the ancient document technique of authentication is universally conceded to apply to all sorts of documents, including letters, records, contracts, maps, and certificates, in addition to title documents, citing numerous decisions. Id id Dallas County v. Commercial Union Assurance Co id For a similar provision, but with the added requirement that the statement has since generally been acted upon as true by persons having an interest in the matter, see California Evidence Code  1331. Exception (17). Ample authority at common law supported the admission in evidence of items falling in this category. While Wigmores text is narrowly oriented to lists, etc., prepared for the use of a trade or profession, 6 Wigmore  1702, authorities are cited which include other kinds of publications, for example, newspaper market reports, telephone directories, and city directories. Id For similar provisions, see Uniform Rule 63(30); California Evidence Code  1340; Kansas Code of Civil Procedure  60460(bb); New Jersey Evidence Rule 63(30). Uniform Commercial Code  2724 provides for admissibility in evidence of reports in official publications or trade journals or in newspapers or periodicals of general circulation published as the reports of such [established commodity] market. Exception (18). The writers have generally favored the admissibility of learned treatises, McCormick  296, p. 621; Morgan, Basic Problems of Evidence 366 (1962); 6 Wigmore  1692, with the support of occasional decisions and rules, City of Dothan v. Hardy Lewandowski v. Preferred Risk Mut. Ins. Co Ross v. Gardner Sayers v. Gardner Colwell v. Gardner Glendenning v. Ribicoff Cook v. Celebrezze Sosna v. Celebrezze McDaniel v. Celebrezze The relevance of the use of treatises on cross-examination is evident. This use of treatises has been the subject of varied views. The most restrictive position is that the witness must have stated expressly on direct his reliance upon the treatise. A slightly more liberal approach still insists upon reliance but allows it to be developed on cross-examination. Further relaxation dispenses with reliance but requires recognition as an authority by the witness, developable on cross-examination. The greatest liberality is found in decisions allowing use of the treatise on cross-examination when its status as an authority is established by any means. Annot., 60 A.L.R.2d 77. The exception is hinged upon this last position, which is that of the Supreme Court, Reilly v. Pinkus City of St. Petersburg v. Ferguson Darling v. Charleston Memorial Community Hospital Dabroe v. Rhodes Co In Reilly v. Pinkus, supra The rule does not require that the witness rely upon or recognize the treatise as authoritative, thus avoiding the possibility that the expert may at the outset block cross-examination by refusing to concede reliance or authoritativeness. Dabroe v. Rhodes Co., supra Exceptions (19), (20), and (21). Trustworthiness in reputation evidence is found when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the communitys conclusion, if any has been formed, is likely to be a trustworthy one. 5 Wigmore  1580, p. 444, and see also  1583. On this common foundation, reputation as to land boundaries, customs, general history, character, and marriage have come to be regarded as admissible. The breadth of the underlying principle suggests the formulation of an equally broad exception, but tradition has in fact been much narrower and more particularized, and this is the pattern of these exceptions in the rule. Exception [paragraph] (19) is concerned with matters of personal and family history. Marriage is universally conceded to be a proper subject of proof by evidence of reputation in the community. 5 Wigmore  1602. As to such items as legitimacy, relationship, adoption, birth, and death, the decisions are divided. Id People v. Reeves State v. Axilrod The first portion of Exception [paragraph] (20) is based upon the general admissibility of evidence of reputation as to land boundaries and land customs, expanded in this country to include private as well as public boundaries. McCormick  299, p. 625. The reputation is required to antedate the controversy, though not to be ancient. The second portion is likewise supported by authority, id Exception [paragraph] (21) recognizes the traditional acceptance of reputation evidence as a means of proving human character. McCormick  44, 158. The exception deals only with the hearsay aspect of this kind of evidence. Limitations upon admissibility based on other grounds will be found in Rules 404, relevancy of character evidence generally, and 608, character of witness. The exception is in effect a reiteration, in the context of hearsay, of Rule 405(a). Similar provisions are contained in Uniform Rule 63(28); California Evidence Code  1324; Kansas Code of Civil Procedure  60460(z); New Jersey Evidence Rule 63(28). Exception (22). When the status of a former judgment is under consideration in subsequent litigation, three possibilities must be noted: (1) the former judgment is conclusive under the doctrine of res judicata, either as a bar or a collateral estoppel; or (2) it is admissible in evidence for what it is worth; or (3) it may be of no effect at all. The first situation does not involve any problem of evidence except in the way that principles of substantive law generally bear upon the relevancy and materiality of evidence. The rule does not deal with the substantive effect of the judgment as a bar or collateral estoppel. When, however, the doctrine of res judicata does not apply to make the judgment either a bar or a collateral estoppel, a choice is presented between the second and third alternatives. The rule adopts the second for judgments of criminal conviction of felony grade. This is the direction of the decisions, Annot., 18 A.L.R.2d 1287, 1299, which manifest an increasing reluctance to reject in toto North River Ins. Co. v. Militello New York & Cuba Mail S.S. Co. v. Continental Cas. Co Connecticut Fire Ins. Co. v. Farrara Practical considerations require exclusion of convictions of minor offenses, not became the administration of justice in its lower echelons must be inferior, but because motivation to defend at this level is often minimal or nonexistent. Cope v. Goble Jones v. Talbot Warren v. Marsh Judgments of conviction based upon pleas of nolo contendere nolo While these rules do not in general purport to resolve constitutional issues, they have in general been drafted with a view to avoiding collision with constitutional principles. Consequently the exception does not include evidence of the conviction of a third person, offered against the accused in a criminal prosecution to prove any fact essential to sustain the judgment of conviction. A contrary position would seem clearly to violate the right of confrontation. Kirby v. United States For comparable provisions see Uniform Rule 63(20); California Evidence Code  1300; Kansas Code of Civil Procedure  60460(r); New Jersey Evidence Rule 63(20). Exception (23). A hearsay exception in this area was originally justified on the ground that verdicts were evidence of reputation. As trial by jury graduated from the category of neighborhood inquests, this theory lost its validity. It was never valid as to chancery decrees. Nevertheless the rule persisted, though the judges and writers shifted ground and began saying that the judgment or decree was as good evidence as reputation. See City of London v. Clerke Neill v. Duke of Devonshire The leading case in the United States, Patterson v. Gaines Grant Bros. Construction Co. v. United States United States v. Mid-Continent Petroleum Corp Jung Yen Loy v. Cahill Contra Notes of Committee on the Judiciary, House Report No. 93650 Rule 803(3) was approved in the form submitted by the Court to Congress. However, the Committee intends that the Rule be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon After giving particular attention to the question of physical examination made solely to enable a physician to testify, the Committee approved Rule 803(4) as submitted to Congress, with the understanding that it is not intended in any way to adversely affect present privilege rules or those subsequently adopted. Rule 803(5) as submitted by the Court permitted the reading into evidence of a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify accurately and fully, shown to have been made when the matter was fresh in his memory and to reflect that knowledge correctly. The Committee amended this Rule to add the words or adopted by the witness after the phrase shown to have been made, a treatment consistent with the definition of statement in the Jencks Act, 18 U.S.C. 3500 Rule 803(6) as submitted by the Court permitted a record made in the course of a regularly conducted activity to be admissible in certain circumstances. The Committee believed there were insufficient guarantees of reliability in records made in the course of activities falling outside the scope of business activities as that term is broadly defined in 28 U.S.C. 1732 Rule 803(7) as submitted by the Court concerned the absence The Committee approved Rule 803(8) without substantive change from the form in which it was submitted by the Court. The Committee intends that the phrase factual findings be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this Rule. The Committee approved this Rule in the form submitted by the Court, intending that the phrase Statements of fact concerning personal or family history be read to include the specific types of such statements enumerated in Rule 803(11). Notes of Committee on the Judiciary, Senate Report No. 931277 The House approved this rule as it was submitted by the Supreme Court with the understanding that it is not intended in any way to adversely affect present privilege rules. We also approve this rule, and we would point out with respect to the question of its relation to privileges, it must be read in conjunction with rule 35 of the Federal Rules of Civil Procedure which provides that whenever the physical or mental condition of a party (plaintiff or defendant) is in controversy, the court may require him to submit to an examination by a physician. It is these examinations which will normally be admitted under this exception. Rule 803(5) as submitted by the Court permitted the reading into evidence of a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify accurately and fully, shown to have been made when the matter was fresh in his memory and to reflect that knowledge correctly. The House amended the rule to add the words or adopted by the witness after the phrase shown to have been made, language parallel to the Jencks Act [18 U.S.C.  3500]. The committee accepts the House amendment with the understanding and belief that it was not intended to narrow the scope of applicability of the rule. In fact, we understand it to clarify the rules applicability to a memorandum adopted by the witness as well as one made by him. While the rule as submitted by the Court was silent on the question of who made the memorandum, we view the House amendment as a helpful clarification, noting, however, that the Advisory Committees note to this rule suggests that the important thing is the accuracy of the memorandum rather than who made it. The committee does not view the House amendment as precluding admissibility in situations in which multiple participants were involved. When the verifying witness has not prepared the report, but merely examined it and found it accurate, he has adopted the report, and it is therefore admissible. The rule should also be interpreted to cover other situations involving multiple participants, e.g., employer dictating to secretary, secretary making memorandum at direction of employer, or information being passed along a chain of persons, as in Curtis v. Bradley Rathbun v. Brancatella The committee also accepts the understanding of the House that a memorandum or report, although barred under rule, would nonetheless be admissible if it came within another hearsay exception. We consider this principle to be applicable to all the hearsay rules. Rule 803(6) as submitted by the Supreme Court permitted a record made in the course of a regularly conducted activity to be admissible in certain circumstances. This rule constituted a broadening of the traditional business records hearsay exception which has been long advocated by scholars and judges active in the law of evidence The House felt there were insufficient guarantees of reliability of records not within a broadly defined business records exception. We disagree. Even under the House definition of business including profession, occupation, and calling of every kind, the records of many regularly conducted activities will, or may be, excluded from evidence. Under the principle of ejusdem generis, the intent of calling of every kind would seem to be related to work-related endeavorse.g., butcher, baker, artist, etc. Thus, it appears that the records of many institutions or groups might not be admissible under the House amendments. For example, schools, churches, and hospitals will not normally be considered businesses within the definition. Yet, these are groups which keep financial and other records on a regular basis in a manner similar to business enterprises. We believe these records are of equivalent trustworthiness and should be admitted into evidence. Three states, which have recently codified their evidence rules, have adopted the Supreme Court version of rule 803(6), providing for admission of memoranda of a regularly conducted activity. None adopted the words business activity used in the House amendment. [See Nev. Rev. Stats.  15.135; N. Mex. Stats. (1973 Supp.)  204803(6); Wests Wis. Stats. Anno. (1973 Supp.)  908.03(6).] Therefore, the committee deleted the word business as it appears before the word activity. The last sentence then is unnecessary and was also deleted. It is the understanding of the committee that the use of the phrase person with knowledge is not intended to imply that the party seeking to introduce the memorandum, report, record, or data compilation must be able to produce, or even identify, the specific individual upon whose first-hand knowledge the memorandum, report, record or data compilation was based. A sufficient foundation for the introduction of such evidence will be laid if the party seeking to introduce the evidence is able to show that it was the regular practice of the activity to base such memorandums, reports, records, or data compilations upon a transmission from a person with knowledge, e.g., in the case of the content of a shipment of goods, upon a report from the companys receiving agent or in the case of a computer printout, upon a report from the companys computer programer or one who has knowledge of the particular record system. In short, the scope of the phrase person with knowledge is meant to be coterminous with the custodian of the evidence or other qualified witness. The committee believes this represents the desired rule in light of the complex nature of modern business organizations. The House approved rule 803(8), as submitted by the Supreme Court, with one substantive change. It excluded from the hearsay exception reports containing matters observed by police officers and other law enforcement personnel in criminal cases. Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases. The committee accepts the Houses decision to exclude such recorded observations where the police officer is available to testify in court about his observation. However, where he is unavailable as unavailability is defined in rule 804(a)(4) and (a)(5), the report should be admitted as the best available evidence. Accordingly, the committee has amended rule 803(8) to refer to the provision of [proposed] rule 804(b)(5) [deleted], which allows the admission of such reports, records or other statements where the police officer or other law enforcement officer is unavailable because of death, then existing physical or mental illness or infirmity, or not being successfully subject to legal process. The House Judiciary Committee report contained a statement of intent that the phrase factual findings in subdivision (c) be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this rule. The committee takes strong exception to this limiting understanding of the application of the rule. We do not think it reflects an understanding of the intended operation of the rule as explained in the Advisory Committee notes to this subsection. The Advisory Committee notes on subsection (c) of this subdivision point out that various kinds of evaluative reports are now admissible under Federal statutes. 7 U.S.C.  78, findings of Secretary of Agriculture prima facie evidence of true grade of grain; 42 U.S.C.  269(b), bill of health by appropriate official prima facie evidence of vessels sanitary history and condition and compliance with regulations. These statutory exceptions to the hearsay rule are preserved. Rule 802. The willingness of Congress to recognize these and other such evaluative reports provides a helpful guide in determining the kind of reports which are intended to be admissible under this rule. We think the restrictive interpretation of the House overlooks the fact that while the Advisory Committee assumes admissibility in the first instance of evaluative reports, they are not admissible if, as the rule states, the sources of information or other circumstances indicate lack of trustworthiness. The Advisory Committee explains the factors to be considered:  * * * * * Factors which may be assistance in passing upon the admissibility of evaluative reports include: (1) the timeliness of the investigation, McCormick, Can the Courts Make Wider Use of Reports of Official Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or experience of the official, id.; (3) whether a hearing was held and the level at which conducted, Franklin v. Skelly Oil Co Palmer v. Hoffman * * * * * The committee concludes that the language of the rule together with the explanation provided by the Advisory Committee furnish sufficient guidance on the admissibility of evaluative reports. The proposed Rules of Evidence submitted to Congress contained identical provisions in rules 803 and 804 (which set forth the various hearsay exceptions), admitting any hearsay statement not specifically covered by any of the stated exceptions, if the hearsay statement was found to have comparable circumstantial guarantees of trustworthiness. The House deleted these provisions (proposed rules 803(24) and 804(b)(6)[(5)]) as injecting too much uncertainty into the law of evidence and impairing the ability of practitioners to prepare for trial. The House felt that rule 102, which directs the courts to construe the Rules of Evidence so as to promote growth and development, would permit sufficient flexibility to admit hearsay evidence in appropriate cases under various factual situations that might arise. We disagree with the total rejection of a residual hearsay exception. While we view rule 102 as being intended to provide for a broader construction and interpretation of these rules, we feel that, without a separate residual provision, the specifically enumerated exceptions could become tortured beyond any reasonable circumstances which they were intended to include (even if broadly construed). Moreover, these exceptions, while they reflect the most typical and well recognized exceptions to the hearsay rule, may not encompass every situation in which the reliability and appropriateness of a particular piece of hearsay evidence make clear that it should be heard and considered by the trier of fact. The committee believes that there are certain exceptional circumstances where evidence which is found by a court to have guarantees of trust worthiness equivalent to or exceeding the guarantees reflected by the presently listed exceptions, and to have a high degree of prolativeness and necessity could properly be admissible. The case of Dallas County v. Commercial Union Assoc. Co., Ltd See also United States v. Barbati Because exceptional cases like the Dallas County The committee, however, also agrees with those supporters of the House version who felt that an overly broad residual hearsay exception could emasculate the hearsay rule and the recognized exceptions or vitiate the rationale behind codification of the rules. Therefore, the committee has adopted a residual exception for rules 803 and 804(b) of much narrower scope and applicability than the Supreme Court version. In order to qualify for admission, a hearsay statement not falling within one of the recognized exceptions would have to satisfy at least four conditions. First, it must have equivalent circumstantial guarantees of trustworthiness. Second, it must be offered as evidence of a material fact. Third, the court must determine that the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. This requirement is intended to insure that only statements which have high probative value and necessity may qualify for admission under the residual exceptions. Fourth, the court must determine that the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. It is intended that the residual hearsay exceptions will be used very rarely, an only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b). The residual exceptions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions. Such major revisions are best accomplished by legislative action. It is intended that in any case in which evidence is sought to be admitted under these subsections, the trial judge will exercise no less care, reflection and caution than the courts did under the common law in establishing the now-recognized exceptions to the hearsay rule. In order to establish a well-defined jurisprudence, the special facts and circumstances which, in the courts judgment, indicates that the statement has a sufficiently high degree of trustworthiness and necessity to justify its admission should be stated on the record. It is expected that the court will give the opposing party a full and adequate opportunity to contest the admission of any statement sought to be introduced under these subsections. Notes of Conference Committee, House Report No. 931597 Rule 803 defines when hearsay statements are admissible in evidence even though the declarant is available as a witness. The Senate amendments make three changes in this rule. The House bill provides in subsection (6) that records of a regularly conducted business activity qualify for admission into evidence as an exception to the hearsay rule. Business is defined as including business, profession, occupation and calling of every kind. The Senate amendment drops the requirement that the records be those of a business activity and eliminates the definition of business. The Senate amendment provides that records are admissible if they are records of a regularly conducted activity. The Conference adopts the House provision that the records must be those of a regularly conducted business activity. The Conferees changed the definition of business contained in the House provision in order to make it clear that the records of institutions and associations like schools, churches and hospitals are admissible under this provision. The records of public schools and hospitals are also covered by Rule 803(8), which deals with public records and reports. The Senate amendment adds language, not contained in the House bill, that refers to another rule that was added by the Senate in another amendment ([proposed] Rule 804(b)(5)Criminal law enforcement records and reports [deleted]). In view of its action on [proposed] Rule 804(b)(5) (Criminal law enforcement records and reports) [deleted], the Conference does not adopt the Senate amendment and restores the bill to the House version. The Senate amendment adds a new subsection, (24), which makes admissible a hearsay statement not specifically covered by any of the previous twenty-three subsections, if the statement has equivalent circumstantial guarantees of trustworthiness and if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. The House bill eliminated a similar, but broader, provision because of the conviction that such a provision injected too much uncertainty into the law of evidence regarding hearsay and impaired the ability of a litigant to prepare adequately for trial. The Conference adopts the Senate amendment with an amendment that provides that a party intending to request the court to use a statement under this provision must notify any adverse party of this intention as well as of the particulars of the statement, including the name and address of the declarant. This notice must be given sufficiently in advance of the trial or hearing to provide any adverse party with a fair opportunity to prepare to contest the use of the statement. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1997 Amendment The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to a new Rule 807. This was done to facilitate additions to Rules 803 and 804. No change in meaning is intended. GAP Report on Rule 803 Committee Notes on Rules2000 Amendment The amendment provides that the foundation requirements of Rule 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time-consuming foundation witnesses. Under current law, courts have generally required foundation witnesses to testify. See, e.g., Tongil Co., Ltd. v. Hyundai Merchant Marine Corp GAP ReportProposed Amendment to Rule 803(6) Committee Notes on Rules2011 Amendment The language of Rule 803 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Committee Notes on Rules2013 Amendment Rule 803(10) has been amended in response to Melendez-Diaz v. Massachusetts, Melendez-Diaz Melendez-Diaz See Changes Made After Publication and Comment Committee Notes on Rules2014 Amendment Subdivision (6)(E). The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances. Changes Made After Publication and Comment Subdivision (7)(C). Changes Made After Publication and Comment Subdivision (8)(B). Ellis v. International Playtex, Inc. The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances. Changes Made After Publication and Comment Committee Notes on Rules2017 Amendment The ancient documents exception to the rule against hearsay has been limited to statements in documents prepared before January 1, 1998 The Committee is aware that in certain casessuch as cases involving latent diseases and environmental damageparties must rely on hardcopy documents from the past. The ancient documents exception remains available for such cases for documents prepared before 1998. Going forward, it is anticipated that any need to admit old hardcopy documents produced after January 1, 1998 The limitation of the ancient documents hearsay exception is not intended to have any effect on authentication of ancient documents. The possibility of authenticating an old document under Rule 901(b)(8)or under any ground available for any other document remains unchanged. The Committee carefully considered, but ultimately rejected, an amendment that would preserve the ancient documents exception for hardcopy evidence only. A party will often offer hardcopy that is derived from ESI. Moreover, a good deal of old information in hardcopy has been digitized or will be so in the future. Thus, the line between ESI and hardcopy was determined to be one that could not be drawn usefully. The Committee understands that the choice of a cut-off date has a degree of arbitrariness. But January 1, 1998 See Under the amendment, a document is prepared when the statement proffered was recorded in that document. For example, if a hardcopy document is prepared in 1995, and a party seeks to admit a scanned copy of that document, the date of preparation is 1995 even though the scan was made long after thatthe subsequent scan does not alter the document. The relevant point is the date on which the information is recorded, not when the information is prepared for trial. However, if the content of the document is itself Amendment by Public Law 1975Exception (23). Pub. L. 94149 Rule 804. Exceptions to the Rule Against HearsayWhen the Declarant Is Unavailable as a Witness (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarants statement because the court rules that a privilege applies; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statements proponent has not been able, by process or other reasonable means, to procure: (A) the declarants attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or (B) the declarants attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarants unavailability as a witness in order to prevent the declarant from attending or testifying. (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1)  Former Testimony. (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who hador, in a civil case, whose predecessor in interest hadan opportunity and similar motive to develop it by direct, cross-, or redirect examination. (2)  Statement Under the Belief of Imminent Death. (3)  Statement Against Interest. (A) a reasonable person in the declarants position would have made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the declarants claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. (4)  Statement of Personal or Family History. (A) the declarants own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the persons family that the declarants information is likely to be accurate. (5)  [ Other Exceptions. (6)  Statement Offered Against a Party That Wrongfully Caused the Declarants Unavailability. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1942 Pub. L. 94149,  1(12) Dec. 12, 1975 89 Stat. 806 Mar. 2, 1987 Oct. 1, 1987 Pub. L. 100690, title VII,  7075(b) Nov. 18, 1988 102 Stat. 4405 Apr. 11, 1997 Dec. 1, 1997 Apr. 28, 2010 Dec. 1, 2010 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules As to firsthand knowledge on the part of hearsay declarants, see the introductory portion of the Advisory Committees Note to Rule 803. Subdivision (a) At common law the unavailability requirement was evolved in connection with particular hearsay exceptions rather than along general lines. For example, see the separate explication of unavailability in relation to former testimony, declarations against interest, and statements of pedigree, separately developed in McCormick  234, 257, and 297. However, no reason is apparent for making distinctions as to what satisfies unavailability for the different exceptions. The treatment in the rule is therefore uniform although differences in the range of process for witnesses between civil and criminal cases will lead to a less exacting requirement under item (5). See Rule 45(e) of the Federal Rules of Civil Procedure and Rule 17(e) of the Federal Rules of Criminal Procedure. Five instances of unavailability are specified: (1) Substantial authority supports the position that exercise of a claim of privilege by the declarant satisfies the requirement of unavailability (usually in connection with former testimony). Wyatt v. State State v. Stewart (2) A witness is rendered unavailable if he simply refuses to testify concerning the subject matter of his statement despite judicial pressures to do so, a position supported by similar considerations of practicality. Johnson v. People People v. Pickett Contra, Pleau v. State (3) The position that a claimed lack of memory by the witness of the subject matter of his statement constitutes unavailability likewise finds support in the cases, though not without dissent. McCormick  234, p. 494. If the claim is successful, the practical effect is to put the testimony beyond reach, as in the other instances. In this instance, however, it will be noted that the lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjection to cross-examination. (4) Death and infirmity find general recognition as ground. McCormick  234, 257, 297; Uniform Rule 62(7)(c); California Evidence Code  240(a)(3); Kansas Code of Civil Procedure  60459(g)(3); New Jersey Evidence Rule 62(6)(c). See also the provisions on use of depositions in Rule 32(a)(3) of the Federal Rules of Civil Procedure and Rule 15(e) of the Federal Rules of Criminal Procedure. (5) Absence from the hearing coupled with inability to compel attendance by process or other reasonable means also satisfies the requirement. McCormick  234; Uniform Rule 62(7)(d) and (e); California Evidence Code  240(a)(4) and (5); Kansas Code of Civil Procedure  60459(g)(4) and (5); New Jersey Rule 62(6)(b) and (d). See the discussion of procuring attendance of witnesses who are nonresidents or in custody in Barber v. Page If the conditions otherwise constituting unavailability result from the procurement or wrongdoing of the proponent of the statement, the requirement is not satisfied. The rule contains no requirement that an attempt be made to take the deposition of a declarant. Subdivision (b) supra Exception (1) supra Under the exception, the testimony may be offered (1) against the party against by by The common law did not limit the admissibility of former testimony to that given in an earlier trial of the same case, although it did require identity of issues as a means of insuring that the former handling of the witness was the equivalent of what would now be done if the opportunity were presented. Modern decisions reduce the requirement to substantial identity. McCormick  233. Since identity of issues is significant only in that it bears on motive and interest in developing fully the testimony of the witness, expressing the matter in the latter terms is preferable. Id California v. Green As a further assurance of fairness in thrusting upon a party the prior handling of the witness, the common law also insisted upon identity of parties, deviating only to the extent of allowing substitution of successors in a narrowly construed privity. Mutuality as an aspect of identity is now generally discredited, and the requirement of identity of the offering party disappears except as it might affect motive to develop the testimony. Falknor, supra Provisions of the same tenor will be found in Uniform Rule 63(3)(b); California Evidence Code  12901292; Kansas Code of Civil Procedure  60460(c)(2); New Jersey Evidence Rule 63(3). Unlike the rule, the latter three provide either that former testimony is not admissible if the right of confrontation is denied or that it is not admissible if the accused was not a party to the prior hearing. The genesis of these limitations is a caveat in Uniform Rule 63(3) Comment that use of former testimony against an accused may violate his right of confrontation. Mattox v. United States supra Mattox v. United States Kirby v. United States Pointer v. Texas Exception (2) Rex v. Woodcock The common law required that the statement be that of the victim, offered in a prosecution for criminal homicide. Thus declarations by victims in prosecutions for other crimes, e.g. a declaration by a rape victim who dies in childbirth, and all declarations in civil cases were outside the scope of the exception. An occasional statute has removed these restrictions, as in Colo.R.S.  52120, or has expanded the area of offenses to include abortions, 5 Wigmore  1432, p. 224, n. 4. Kansas by decision extended the exception to civil cases. Thurston v. Fritz Comparable provisions are found in Uniform Rule 63 (5); California Evidence Code  1242; Kansas Code of Civil Procedure  60460(e); New Jersey Evidence Rule 63(5). Exception (3) Hileman v. Northwest Engineering Co The common law required that the interest declared against be pecuniary or proprietary but within this limitation demonstrated striking ingenuity in discovering an against-interest aspect. Higham v. Ridgeway Reg. v. Overseers of Birmingham The exception discards the common law limitation and expands to the full logical limit. One result is to remove doubt as to the admissibility of declarations tending to establish a tort liability against the declarant or to extinguish one which might be asserted by him, in accordance with the trend of the decisions in this country. McCormick  254, pp. 548549. Another is to allow statements tending to expose declarant to hatred, ridicule, or disgrace, the motivation here being considered to be as strong as when financial interests are at stake. McCormick  255, p. 551. And finally, exposure to criminal liability satisfies the against-interest requirement. The refusal of the common law to concede the adequacy of a penal interest was no doubt indefensible in logic, see the dissent of Mr. Justice Holmes in Donnelly v. United States People v. Spriggs Sutter v. Easterly Bands Refuse Removal, Inc. v. Fairlawn Borough Newberry v. Commonwealth Ordinarily the third-party confession is thought of in terms of exculpating the accused, but this is by no means always or necessarily the case: it may include statements implicating him, and under the general theory of declarations against interest they would be admissible as related statements. Douglas v. Alabama Bruton v. United States Douglas Bruton Bruton e.g The balancing of self-serving against dissenting aspects of a declaration is discussed in McCormick  256. For comparable provisions, see Uniform Rule 63(10): California Evidence Code  1230; Kansas Code of Civil Procedure  60460(j); New Jersey Evidence Rule 63(10). Exception (4) ante litem motam Id Id For comparable provisions, see Uniform Rule 63 (23), (24), (25); California Evidence Code  1310, 1311; Kansas Code of Civil Procedure  60460(u), (v), (w); New Jersey Evidence Rules 63(23), 63(24), 63(25). Notes of Committee on the Judiciary, House Report No. 93650 Rule 804(a)(3) was approved in the form submitted by the Court. However, the Committee intends no change in existing federal law under which the court may choose to disbelieve the declarants testimony as to his lack of memory. See United States v. Insana Rule 804(a)(5) as submitted to the Congress provided, as one type of situation in which a declarant would be deemed unavailable, that he be absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. The Committee amended the Rule to insert after the word attendance the parenthetical expression (or, in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony). The amendment is designed primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being deemed unavailable. The Committee, however, recognized the propriety of an exception to this additional requirement when it is the declarants former testimony that is sought to be admitted under subdivision (b)(1). Rule 804(b)(1) as submitted by the Court allowed prior testimony of an unavailable witness to be admissible if the party against whom it is offered or a person with motive and interest similar to his had an opportunity to examine the witness. The Committee considered that it is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party. The sole exception to this, in the Committees view, is when a partys predecessor in interest in a civil action or proceeding had an opportunity and similar motive to examine the witness. The Committee amended the Rule to reflect these policy determinations. Rule 804(b)(3) as submitted by the Court (now Rule 804(b)(2) in the bill) proposed to expand the traditional scope of the dying declaration exception (i.e. a statement of the victim in a homicide case as to the cause or circumstances of his believed imminent death) to allow such statements in all criminal and civil cases. The Committee did not consider dying declarations as among the most reliable forms of hearsay. Consequently, it amended the provision to limit their admissibility in criminal cases to homicide prosecutions, where exceptional need for the evidence is present. This is existing law. At the same time, the Committee approved the expansion to civil actions and proceedings where the stakes do not involve possible imprisonment, although noting that this could lead to forum shopping in some instances. Rule 804(b)(4) as submitted by the Court (now Rule 804(b)(3) in the bill) provided as follows: Statement against interest. The Committee determined to retain the traditional hearsay exception for statements against pecuniary or proprietary interest. However, it deemed the Courts additional references to statements tending to subject a declarant to civil liability or to render invalid a claim by him against another to be redundant as included within the scope of the reference to statements against pecuniary or proprietary interest. See Gichner v. Antonio Triano Tile and Marble Co The Courts Rule also proposed to expand the hearsay limitation from its present federal limitation to include statements subjecting the declarant to criminal liability and statements tending to make him an object of hatred, ridicule, or disgrace. The Committee eliminated the latter category from the subdivision as lacking sufficient guarantees of reliability. See United States v. Dovico Donnelly v. United States Bruton v. United States Bruton Notes of Committee on the Judiciary, Senate Report No. 931277 Subdivision (a) The purpose of the amendment, according to the report of the House Committee on the Judiciary, is primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being unavailable. Under the House amendment, before a witness is declared unavailable, a party must try to depose a witness (declarant) with respect to dying declarations, declarations against interest, and declarations of pedigree. None of these situations would seem to warrant this needless, impractical and highly restrictive complication. A good case can be made for eliminating the unavailability requirement entirely for declarations against interest cases. [Uniform rule 63(10); Kan. Stat. Anno. 60460(j); 2A N.J. Stats. Anno. 8463(10).] In dying declaration cases, the declarant will usually, though not necessarily, be deceased at the time of trial. Pedigree statements which are admittedly and necessarily based largely on word of mouth are not greatly fortified by a deposition requirement. Depositions are expensive and time-consuming. In any event, deposition procedures are available to those who wish to resort to them. Moreover, the deposition procedures of the Civil Rules and Criminal Rules are only imperfectly adapted to implementing the amendment. No purpose is served unless the deposition, if taken, may be used in evidence. Under Civil Rule (a)(3) and Criminal Rule 15(e), a deposition, though taken, may not be admissible, and under Criminal Rule 15(a) substantial obstacles exist in the way of even taking a deposition. For these reasons, the committee deleted the House amendment. The committee understands that the rule as to unavailability, as explained by the Advisory Committee contains no requirement that an attempt be made to take the deposition of a declarant. In reflecting the committees judgment, the statement is accurate insofar as it goes. Where, however, the proponent of the statement, with knowledge of the existence of the statement, fails to confront the declarant with the statement at the taking of the deposition, then the proponent should not, in fairness, be permitted to treat the declarant as unavailable simply because the declarant was not amendable to process compelling his attendance at trial. The committee does not consider it necessary to amend the rule to this effect because such a situation abuses, not conforms to, the rule. Fairness would preclude a person from introducing a hearsay statement on a particular issue if the person taking the deposition was aware of the issue at the time of the deposition but failed to depose the unavailable witness on that issue. Former testimony.Rule 804(b)(1) as submitted by the Court allowed prior testimony of an unavailable witness to be admissible if the party against whom it is offered or a person with motive and interest similar to his had an opportunity to examine the witness. The House amended the rule to apply only to a partys predecessor in interest. Although the committee recognizes considerable merit to the rule submitted by the Supreme Court, a position which has been advocated by many scholars and judges, we have concluded that the difference between the two versions is not great and we accept the House amendment. The rule defines those statements which are considered to be against interest and thus of sufficient trustworthiness to be admissible even though hearsay. With regard to the type of interest declared against, the version submitted by the Supreme Court included inter alia, statements tending to subject a declarant to civil liability or to invalidate a claim by him against another. The House struck these provisions as redundant. In view of the conflicting case law construing pecuniary or proprietary interests narrowly so as to exclude, e.g., tort cases, this deletion could be misconstrued. Three States which have recently codified their rules of evidence have followed the Supreme Courts version of this rule, i.e., that a statement is against interest if it tends to subject a declarant to civil liability. [Nev. Rev. Stats.  51.345; N. Mex. Stats. (1973 supp.)  204804(4); Wests Wis. Stats. Anno. (1973 supp.)  908.045(4).] The committee believes that the reference to statements tending to subject a person to civil liability constitutes a desirable clarification of the scope of the rule. Therefore, we have reinstated the Supreme Court language on this matter. The Court rule also proposed to expand the hearsay limitation from its present federal limitation to include statements subjecting the declarant to statements tending to make him an object of hatred, ridicule, or disgrace. The House eliminated the latter category from the subdivision as lacking sufficient guarantees of reliability. Although there is considerable support for the admissibility of such statements (all three of the State rules referred to supra, would admit such statements), we accept the deletion by the House. The House amended this exception to add a sentence making inadmissible a statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused. The sentence was added to codify the constitutional principle announced in Bruton v. United States Bruton The committee decided to delete this provision because the basic approach of the rules is to avoid codifying, or attempting to codify, constitutional evidentiary principles, such as the fifth amendments right against self-incrimination and, here, the sixth amendments right of confrontation. Codification of a constitutional principle is unnecessary and, where the principle is under development, often unwise. Furthermore, the House provision does not appear to recognize the exceptions to the Bruton United States v. Mancusi United States v. Zelker Note to Subdivision (b)(5) Notes of Conference Committee, House Report No. 931597 Rule 804 defines what hearsay statements are admissible in evidence if the declarant is unavailable as a witness. The Senate amendments make four changes in the rule. Subsection (a) defines the term unavailability as a witness. The House bill provides in subsection (a)(5) that the party who desires to use the statement must be unable to procure the declarants attendance by process or other reasonable means. In the case of dying declarations, statements against interest and statements of personal or family history, the House bill requires that the proponent must also be unable to procure the declarants testimony The Conference adopts the provision contained in the House bill. The Senate amendment to subsection (b)(3) provides that a statement is against interest and not excluded by the hearsay rule when the declarant is unavailable as a witness, if the statement tends to subject a person to civil or criminal liability or renders invalid a claim by him against another. The House bill did not refer specifically to civil liability and to rendering invalid a claim against another. The Senate amendment also deletes from the House bill the provision that subsection (b)(3) does not apply to a statement or confession, made by a codefendant or another, which implicates the accused and the person who made the statement, when that statement or confession is offered against the accused in a criminal case. The Conference adopts the Senate amendment. The Conferees intend to include within the purview of this rule, statements subjecting a person to civil liability and statements rendering claims invalid. The Conferees agree to delete the provision regarding statements by a codefendant, thereby reflecting the general approach in the Rules of Evidence to avoid attempting to codify constitutional evidentiary principles. The Senate amendment adds a new subsection, (b)(6) [now (b)(5)], which makes admissible a hearsay statement not specifically covered by any of the five previous subsections, if the statement has equivalent circumstantial guarantees of trustworthiness and if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. The House bill eliminated a similar, but broader, provision because of the conviction that such a provision injected too much uncertainty into the law of evidence regarding hearsay and impaired the ability of a litigant to prepare adequately for trial. The Conference adopts the Senate amendment with an amendment that renumbers this subsection and provides that a party intending to request the court to use a statement under this provision must notify any adverse party of this intention as well as of the particulars of the statement, including the name and address of the declarant. This notice must be given sufficiently in advance of the trial or hearing to provide any adverse party with a fair opportunity to prepare the contest the use of the statement. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1997 Amendment Subdivision (b)(5). Subdivision (b)(6). United States v. Mastrangelo cert. denied Every circuit that has resolved the question has recognized the principle of forfeiture by misconduct, although the tests for determining whether there is a forfeiture have varied. See, e.g., United States v. Aguiar United States v. Potamitis cert. denied Steele v. Taylor cert. denied United States v. Balano cert. denied United States v. Carlson cert. denied Contra United States v. Thevis cert. denied GAP Report on Rule 804(b)(5) GAP Report on Rule 804(b)(6) Committee Notes on Rules2010 Amendment Subdivision (b)(3). See, e.g., United States v. Alvarez United States v. Shukri All other changes to the structure and wording of the Rule are intended to be stylistic only. There is no intent to change any other result in any ruling on evidence admissibility. The amendment does not address the use of the corroborating circumstances for declarations against penal interest offered in civil cases. In assessing whether corroborating circumstances exist, some courts have focused on the credibility of the witness who relates the hearsay statement in court. But the credibility of the witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. To base admission or exclusion of a hearsay statement on the witnesss credibility would usurp the jurys role of determining the credibility of testifying witnesses. Changes Made After Publication and Comments. The proposed Committee Note was amended to add a short discussion on applying the corroborating circumstances requirement. Committee Notes on Rules2011 Amendment The language of Rule 804 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. No style changes were made to Rule 804(b)(3), because it was already restyled in conjunction with a substantive amendment, effective December 1,2010. Amendment by Public Law 1988Subd. (a)(5). Pub. L. 100690 1975 Pub. L. 94149,  1(12) Subd. (b)(3). Pub. L. 94149,  1(13) Rule 805. Hearsay Within Hearsay  Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1943 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules On principle it scarcely seems open to doubt that the hearsay rule should not call for exclusion of a hearsay statement which includes a further hearsay statement when both conform to the requirements of a hearsay exception. Thus a hospital record might contain an entry of the patients age based on information furnished by his wife. The hospital record would qualify as a regular entry except that the person who furnished the information was not acting in the routine of the business. However, her statement independently qualifies as a statement of pedigree (if she is unavailable) or as a statement made for purposes of diagnosis or treatment, and hence each link in the chain falls under sufficient assurances. Or, further to illustrate, a dying declaration may incorporate a declaration against interest by another declarant. See McCormick  290, p. 611. Committee Notes on Rules2011 Amendment The language of Rule 805 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 806. Attacking and Supporting the Declarants Credibility  When a hearsay statementor a statement described in Rule 801(d)(2)(C), (D), or (E)has been admitted in evidence, the declarants credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarants inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1943 Mar. 2, 1987 Oct. 1, 1987 Apr. 11, 1997 Dec. 1, 1997 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified. See Rules 608 and 609. There are however, some special aspects of the impeaching of a hearsay declarant which require consideration. These special aspects center upon impeachment by inconsistent statement, arise from factual differences which exist between the use of hearsay and an actual witness and also between various kinds of hearsay, and involve the question of applying to declarants the general rule disallowing evidence of an inconsistent statement to impeach a witness unless he is afforded an opportunity to deny or explain. See Rule 613(b). The principle difference between using hearsay and an actual witness is that the inconsistent statement will in the case of the witness almost inevitably of necessity in the nature of things be a prior subsequent People v. Collup People v. Rosoto Carver v. United States Contra, Mattox v. United States People v. Hines Mattox Carver subsequent Mattox. When the impeaching statement was made prior Notice should be taken that Rule 26(f) of the Federal Rules of Civil Procedure, as originally submitted by the Advisory Committee, ended with the following: * * * and, without having first called them to the deponents attention, may show statements contradictory thereto made at any time by the deponent. This language did not appear in the rule as promulgated in December, 1937. See 4 Moores Federal Practice  26.01[9], 26.35 (2d ed. 1967). In 1951, Nebraska adopted a provision strongly resembling the one stricken from the federal rule:  Any party may impeach any adverse deponent by self-contradiction without having laid foundation for such impeachment at the time such deposition was taken. For similar provisions, see Uniform Rule 65; California Evidence Code  1202; Kansas Code of Civil Procedure  60462; New Jersey Evidence Rule 65. The provision for cross-examination of a declarant upon his hearsay statement is a corollary of general principles of cross-examination. A similar provision is found in California Evidence Code  1203. Notes of Committee on the Judiciary, Senate Report No. 931277 Rule 906, as passed by the House and as proposed by the Supreme Court provides that whenever a hearsay statement is admitted, the credibility of the declarant of the statement may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Rule 801 defines what is a hearsay statement. While statements by a person authorized by a party-opponent to make a statement concerning the subject, by the party-opponents agent or by a coconspirator of a partysee rule 801(d)(2)(c), (d) and (e)are traditionally defined as exceptions to the hearsay rule, rule 801 defines such admission by a party-opponent as statements which are not hearsay. Consequently, rule 806 by referring exclusively to the admission of hearsay statements, does not appear to allow the credibility of the declarant to be attacked when the declarant is a coconspirator, agent or authorized spokesman. The committee is of the view that such statements should open the declarant to attacks on his credibility. Indeed, the reason such statements are excluded from the operation of rule 806 is likely attributable to the drafting technique used to codify the hearsay rule, viz some statements, instead of being referred to as exceptions to the hearsay rule, are defined as statements which are not hearsay. The phrase or a statement defined in rule 801(d)(2)(c), (d) and (e) is added to the rule in order to subject the declarant of such statements, like the declarant of hearsay statements, to attacks on his credibility. [The committee considered it unnecessary to include statements contained in rule 801(d)(2)(A) and (B)the statement by the party-opponent himself or the statement of which he has manifested his adoptionbecause the credibility of the party-opponent is always subject to an attack on his credibility]. Notes of Conference Committee, House Report No. 931597 The Senate amendment permits an attack upon the credibility of the declarant of a statement if the statement is one by a person authorized by a party-opponent to make a statement concerning the subject, one by an agent of a party-opponent, or one by a coconspirator of the party-opponent, as these statements are defined in Rules 801(d)(2)(C), (D) and (E). The House bill has no such provision. The Conference adopts the Senate amendment. The Senate amendment conforms the rule to present practice. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1997 Amendment The amendment is technical. No substantive change is intended. GAP Report Committee Notes on Rules2011 Amendment The language of Rule 806 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 807. Residual Exception (a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: (1) the statement is supported by sufficient guarantees of trustworthinessafter considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. (b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statementincluding its substance and the declarants nameso that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearingor in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice. (Added Apr. 11, 1997 Dec. 1, 1997 Apr. 26, 2011 Dec. 1, 2011 Apr. 25, 2019 Dec. 1, 2019  Notes of Advisory Committee on Rules The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to a new Rule 807. This was done to facilitate additions to Rules 803 and 804. No change in meaning is intended. GAP Report on Rule 807 Committee Notes on Rules2011 Amendment The language of Rule 807 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Committee Notes on Rules2019 Amendment Rule 807 has been amended to fix a number of problems that the courts have encountered in applying it. Courts have had difficulty with the requirement that the proffered hearsay carry equivalent circumstantial guarantees of trustworthiness. The equivalence standard is difficult to apply, given the different types of guarantees of reliability, of varying strength, found among the categorical exceptions (as well as the fact that some hearsay exceptions, e.g., Rule 804(b)(6), are not based on reliability at all). The equivalence standard has not served to guide a courts discretion to admit hearsay, because the court is free to choose among a spectrum of exceptions for comparison. Moreover, experience has shown that some statements offered as residual hearsay cannot be compared usefully to any of the categorical exceptions and yet might well be trustworthy. Thus the requirement of an equivalence analysis has been eliminated. Under the amendment, the court should proceed directly to a determination of whether the hearsay is supported by guarantees of trustworthiness. See The amendment specifically requires the court to consider corroborating evidence in the trustworthiness enquiry. Most courts have required the consideration of corroborating evidence, though some courts have disagreed. The rule now provides for a uniform approach, and recognizes that the existence or absence of corroboration is relevant to, but not dispositive of, whether a statement should be admissible under this exception. Of course, the court must consider not only the existence of corroborating evidence but also the strength and quality of that evidence. The amendment does not alter the case law prohibiting parties from proceeding directly to the residual exception, without considering the admissibility of the hearsay under Rules 803 and 804. A court is not required to make a finding that no other hearsay exception is applicable. But the opponent 1 1 The rule in its current form applies to hearsay not specifically covered by a Rule 803 or 804 exception. The amendment makes the rule applicable to hearsay not admissible under those exceptions. This clarifies that a court assessing guarantees of trustworthiness may consider whether the statement is a near-miss of one of the Rule 803 or 804 exceptions. If the court employs a near-miss analysis it shouldin addition to evaluating all relevant guarantees of trustworthinesstake into account the reasons that the hearsay misses the admissibility requirements of the standard exception. In deciding whether the statement is supported by sufficient guarantees of trustworthiness, the court should not consider the credibility of any witness who relates the declarants hearsay statement in court. The credibility of an in-court witness does not present a hearsay question. To base admission or exclusion of a hearsay statement on the witnesss credibility would usurp the jurys role of determining the credibility of testifying witnesses. The rule provides that the focus for trustworthiness is on circumstantial guarantees surrounding the making of the statement itself, as well as any independent evidence corroborating the statement. The credibility of the witness relating the statement is not a part of either enquiry. Of course, even if the court finds sufficient guarantees of trustworthiness, the independent requirements of the Confrontation Clause must be satisfied if the hearsay statement is offered against a defendant in a criminal case. The Committee decided to retain the requirement that the proponent must show that the hearsay statement is more probative than any other evidence that the proponent can reasonably obtain. This necessity requirement will continue to serve to prevent the residual exception from being used as a device to erode the categorical exceptions. The requirements that residual hearsay must be evidence of a material fact and that its admission will best serve the purposes of these rules and the interests of justice have been deleted. These requirements have proved to be superfluous in that they are already found in other rules. See The notice provision has been amended to make four changes in the operation of the rule:  First, the amendment requires the proponent to disclose the substance of the statement. This term is intended to require a description that is sufficiently specific under the circumstances to allow the opponent a fair opportunity to meet the evidence. See  Second, the prior requirement that the declarants address must be disclosed has been deleted. That requirement was nonsensical when the declarant was unavailable, and unnecessary in the many cases in which the declarants address was known or easily obtainable. If prior disclosure of the declarants address is critical and cannot be obtained by the opponent through other means, then the opponent can seek relief from the court.  Third, the amendment requires that the pretrial notice be in writingwhich is satisfied by notice in electronic form. See  Finally, the pretrial notice provision has been amended to provide for a good cause exception. Most courts have applied a good cause exception under Rule 807 even though the rule in its current form does not provide for it, while some courts have read the rule as it was written. Experience under the residual exception has shown that a good cause exception is necessary in certain limited situations. For example, the proponent may not become aware of the existence of the hearsay statement until after the trial begins, or the proponent may plan to call a witness who without warning becomes unavailable during trial, and the proponent might then need to resort to residual hearsay. The rule retains the requirement that the opponent receive notice in a way that provides a fair opportunity to meet the evidence. When notice is provided during trial after a finding of good cause, the court may need to consider protective measures, such as a continuance, to assure that the opponent is not prejudiced. ARTICLE IX. AUTHENTICATION AND IDENTIFICATION Rule 901. Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples onlynot a complete listof evidence that satisfies the requirement: (1)  Testimony of a Witness with Knowledge. (2)  Nonexpert Opinion About Handwriting. (3)  Comparison by an Expert Witness or the Trier of Fact. (4)  Distinctive Characteristics and the Like. (5)  Opinion About a Voice. (6)  Evidence About a Telephone Conversation. (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. (7)  Evidence About Public Records. (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept. (8)  Evidence About Ancient Documents or Data Compilations. (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered. (9)  Evidence About a Process or System. (10)  Methods Provided by a Statute or Rule. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1943 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) This requirement of showing authenticity or identity fails in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b). The common law approach to authentication of documents has been criticized as an attitude of agnosticism, McCormick, Cases on Evidence 388, n. 4 (3rd ed. 1956), as one which departs sharply from mens customs in ordinary affairs, and as presenting only a slight obstacle to the introduction of forgeries in comparison to the time and expense devoted to proving genuine writings which correctly show their origin on their face, McCormick  185, pp. 395, 396. Today, such available procedures as requests to admit and pretrial conference afford the means of eliminating much of the need for authentication or identification. Also, significant inroads upon the traditional insistence on authentication and identification have been made by accepting as at least prima facie genuine items of the kind treated in Rule 902, infra Subdivision (b) The examples relate for the most part to documents, with some attention given to voice communications and computer print-outs. As Wigmore noted, no special rules have been developed for authenticating chattels. Wigmore, Code of Evidence  2086 (3rd ed. 1942). It should be observed that compliance with requirements of authentication or identification by no means assures admission of an item into evidence, as other bars, hearsay for example, may remain. Example (1) Example (2) Example (3) Evans v. Commonwealth Precedent supports the acceptance of visual comparison as sufficiently satisfying preliminary authentication requirements for admission in evidence. Brandon v. Collins Wausau Sulphate Fibre Co. v. Commissioner of Internal Revenue Desimone v. United States Example (4) Globe Automatic Sprinkler Co. v. Braniff Magnuson v. State Example (5) supra, People v. Nichols McGuire v. State State v. McGee Example (6) supra Matton v. Hoover Co City of Pawhuska v. Crutchfield Zurich General Acc. & Liability Ins. Co. v. Baum Example (7) Example (8) Any time period selected is bound to be arbitrary. The common law period of 30 years is here reduced to 20 years, with some shift of emphasis from the probable unavailability of witnesses to the unlikeliness of a still viable fraud after the lapse of time. The shorter period is specified in the English Evidence Act of 1938, 1 & 2 Geo. 6, c. 28, and in Oregon R.S. 1963,  41.360(34). See also the numerous statutes prescribing periods of less than 30 years in the case of recorded documents. 7 Wigmore  2143. The application of Example (8) is not subject to any limitation to title documents or to any requirement that possession, in the case of a title document, has been consistent with the document. See McCormick  190. Example (9) Transport Indemnity Co. v. Seib State v. Veres Merrick v. United States Rubber Co Example (10) Committee Notes on Rules2011 Amendment The language of Rule 901 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 902. Evidence That Is Self-Authenticating The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: (1)  Domestic Public Documents That Are Sealed and Signed. (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and (B) a signature purporting to be an execution or attestation. (2)  Domestic Public Documents That Are Not Sealed but Are Signed and Certified. (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and (B) another public officer who has a seal and official duties within that same entity certifies under sealor its equivalentthat the signer has the official capacity and that the signature is genuine. (3)  Foreign Public Documents. (A) order that it be treated as presumptively authentic without final certification; or (B) allow it to be evidenced by an attested summary with or without final certification. (4)  Certified Copies of Public Records. (A) the custodian or another person authorized to make the certification; or (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court. (5)  Official Publications. (6)  Newspapers and Periodicals. (7)  Trade Inscriptions and the Like. (8)  Acknowledged Documents. (9)  Commercial Paper and Related Documents. (10)  Presumptions Under a Federal Statute. (11)  Certified Domestic Records of a Regularly Conducted Activity. (12)  Certified Foreign Records of a Regularly Conducted Activity. (13)  Certified Records Generated by an Electronic Process or System. (14)  Certified Data Copied from an Electronic Device, Storage Medium, or File. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1944 Mar. 2, 1987 Oct. 1, 1987 Apr. 25, 1988 Nov. 1, 1988 Apr. 17, 2000 Dec. 1, 2000 Apr. 26, 2011 Dec. 1, 2011 Apr. 27, 2017 Dec. 1, 2017  Notes of Advisory Committee on Proposed Rules Case law and statutes have, over the years, developed a substantial body of instances in which authenticity is taken as sufficiently established for purposes of admissibility without extrinsic evidence to that effect, sometimes for reasons of policy but perhaps more often because practical considerations reduce the possibility of unauthenticity to a very small dimension. The present rule collects and incorporates these situations, in some instances expanding them to occupy a larger area which their underlying considerations justify. In no instance is the opposite party foreclosed from disputing authenticity. Paragraph (1) Paragraph (2) Paragraph (3 Paragraph (4) Paragraph (5) Paragraph (6) Paragraph (7) Curtiss Candy Co. v. Johnson Doyle v. Continental Baking Co Weiner v. Mager & Throne, Inc Contra, Keegan v. Green Giant Co Murphy v. Campbell Soup Co State v. Wolfley Pittsburgh, Ft. W. & C. Ry. v. Callaghan Paragraph (8) Paragraph (9) Erie Railroad Co. v. Tompkins supra Clearfield Trust Co. v. United States United States v. Yazell Williams v. Walker-Thomas-Furniture Co Paragraph (10) Notes of Committee on the Judiciary, House Report No. 93650 Rule 902(8) as submitted by the Court referred to certificates of acknowledgment under the hand and seal of a notary public or other officer authorized by law to take acknowledgments. The Committee amended the Rule to eliminate the requirement, believed to be inconsistent with the law in some States, that a notary public must affix a seal to a document acknowledged before him. As amended the Rule merely requires that the document be executed in the manner prescribed by State law. The Committee approved Rule 902(9) as submitted by the Court. With respect to the meaning of the phrase general commercial law, the Committee intends that the Uniform Commercial Code, which has been adopted in virtually every State, will be followed generally, but that federal commercial law will apply where federal commercial paper is involved. See Clearfield Trust Co. v. United States Erie R. Co. v. Tompkins Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1988 Amendment These two sentences were inadvertently eliminated from the 1987 amendments. The amendment is technical. No substantive change is intended. Committee Notes on Rules2000 Amendment The amendment adds two new paragraphs to the rule on self-authentication. It sets forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness. See the amendment to Rule 803(6). 18 U.S.C.  3505 currently provides a means for certifying foreign records of regularly conducted activity in criminal cases, and this amendment is intended to establish a similar procedure for domestic records, and for foreign records offered in civil cases. A declaration that satisfies 28 U.S.C.  1746 would satisfy the declaration requirement of Rule 902(11), as would any comparable certification under oath. The notice requirement in Rules 902(11) and (12) is intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration. GAP ReportProposed Amendment to Rule 902 1. Minor stylistic changes were made in the text, in accordance with suggestions of the Style Subcommittee of the Standing Committee on Rules of Practice and Procedure. 2. The phrase in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority was added to proposed Rule 902(11), to provide consistency with Evidence Rule 902(4). The Committee Note was amended to accord with this textual change. 3. Minor stylistic changes were made in the text to provide a uniform construction of the terms declaration and certifying. 4. The notice provisions in the text were revised to clarify that the proponent must make both the declaration and the underlying record available for inspection.  Termination of Trust Territory of the Pacific Islands For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48 Committee Notes on Rules2011 Amendment The language of Rule 902 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Committee Notes on Rules2017 Amendment Paragraph (13) Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate. A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then authenticity is not established under this Rule. The Rule specifically allows the authenticity foundation that satisfies Rule 901(b)(9) to be established by a certification rather than the testimony of a live witness. The reference to the certification requirements of Rule 902(11) or (12) is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(13) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently. A certification under this Rule can establish only that the proffered item has satisfied the admissibility requirements for authenticity. The opponent remains free to object to admissibility of the proffered item on other groundsincluding hearsay, relevance, or in criminal cases the right to confrontation. For example, assume that a plaintiff in a defamation case offers what purports to be a printout of a webpage on which a defamatory statement was made. Plaintiff offers a certification under this Rule in which a qualified person describes the process by which the webpage was retrieved. Even if that certification sufficiently establishes that the webpage is authentic, defendant remains free to object that the statement on the webpage was not placed there by defendant. Similarly, a certification authenticating a computer output, such as a spreadsheet, does not preclude an objection that the information produced is unreliablethe authentication establishes only that the output came from the computer. A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided. The reference to Rule 902(12) is intended to cover certifications that are made in a foreign country. Paragraph (14) Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by hash value. A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology. Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate. A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then authenticity is not established under this Rule. The reference to the certification requirements of Rule 902(11) or (12) is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(14) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently. A certification under this Rule can only establish that the proffered item is authentic. The opponent remains free to object to admissibility of the proffered item on other groundsincluding hearsay, relevance, or in criminal cases the right to confrontation. For example, in a criminal case in which data copied from a hard drive is proffered, the defendant can still challenge hearsay found in the hard drive, and can still challenge whether the information on the hard drive was placed there by the defendant. A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided. The reference to Rule 902(12) is intended to cover certifications that are made in a foreign country. Rule 903. Subscribing Witnesss Testimony  A subscribing witnesss testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1945 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The common law required that attesting witnesses be produced or accounted for. Today the requirement has generally been abolished except with respect to documents which must be attested to be valid, e.g. wills in some states. McCormick  188. Uniform Rule 71; California Evidence Code  1411; Kansas Code of Civil Procedure  60468; New Jersey Evidence Rule 71; New York CPLR Rule 4537. Committee Notes on Rules2011 Amendment The language of Rule 903 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS Rule 1001. Definitions That Apply to This Article In this article: (a) A writing consists of letters, words, numbers, or their equivalent set down in any form. (b) A recording consists of letters, words, numbers, or their equivalent recorded in any manner. (c) A photograph means a photographic image or its equivalent stored in any form. (d) An original of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, original means any printoutor other output readable by sightif it accurately reflects the information. An original of a photograph includes the negative or a print from it. (e) A duplicate means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1945 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules In an earlier day, when discovery and other related procedures were strictly limited, the misleading named best evidence rule afforded substantial guarantees against inaccuracies and fraud by its insistence upon production of original documents. The great enlargement of the scope of discovery and related procedures in recent times has measurably reduced the need for the rule. Nevertheless important areas of usefulness persist: discovery of documents outside the jurisdiction may require substantial outlay of time and money; the unanticipated document may not practically be discoverable; criminal cases have built-in limitations on discovery. Cleary and Strong, The Best Evidence Rule: An Evaluation in Context, 51 Iowa L.Rev. 825 (1966). Paragraph (1) Paragraph (3) Transport Indemnity Co. v. Seib Paragraph (4) infra Notes of Committee on the Judiciary, House Report No. 93650 The Committee amended this Rule expressly to include video tapes in the definition of photographs. Committee Notes on Rules2011 Amendment The language of Rule 1001 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 1002. Requirement of the Original  An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1946 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The rule is the familiar one requiring production of the original of a document to prove its contents, expanded to include writings, recordings, and photographs, as defined in Rule 1001(1) and (2), supra. Application of the rule requires a resolution of the question whether contents are sought to be proved. Thus an event may be proved by nondocumentary evidence, even though a written record of it was made. If, however, the event is sought to be proved by the written record, the rule applies. For example, payment may be proved without producing the written receipt which was given. Earnings may be proved without producing books of account in which they are entered. McCormick  198; 4 Wigmore  1245. Nor does the rule apply to testimony that books or records have been examined and found not to contain any reference to a designated matter. The assumption should not be made that the rule will come into operation on every occasion when use is made of a photograph in evidence. On the contrary, the rule will seldom apply to ordinary photographs. In most instances a party wishes On occasion, however, situations arise in which contents are sought to be proved. Copyright, defamation, and invasion of privacy by photograph or motion picture falls in this category. Similarly as to situations in which the picture is offered as having independent probative value, e.g. automatic photograph of bank robber. See People v. Doggett Daniels v. Iowa City Cellamare v. Third Acc. Transit Corp Patrick & Tilman v. Matkin Mendoza v. Rivera It should be noted, however, that Rule 703, supra, allows an expert to give an opinion based on matters not in evidence, and the present rule must be read as being limited accordingly in its application. Hospital records which may be admitted as business records under Rule 803(6) commonly contain reports interpreting X-rays by the staff radiologist, who qualifies as an expert, and these reports need not be excluded from the records by the instant rule. The reference to Acts of Congress is made in view of such statutory provisions as 26 U.S.C.  7513, photographic reproductions of tax returns and documents, made by authority of the Secretary of the Treasury, treated as originals, and 44 U.S.C.  399(a), photographic copies in National Archives treated as originals. Committee Notes on Rules2011 Amendment The language of Rule 1002 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 1003. Admissibility of Duplicates  A duplicate is admissible to the same extent as the original unless a genuine question is raised about the originals authenticity or the circumstances make it unfair to admit the duplicate. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1946 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules When the only concern is with getting the words or other contents before the court with accuracy and precision, then a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness. By definition in Rule 1001(4), supra Therefore, if no genuine issue exists as to authenticity and no other reason exists for requiring the original, a duplicate is admissible under the rule. This position finds support in the decisions, Myrick v. United States Johns v. United States Sauget v. Johnston United States v. Alexander Toho Bussan Kaisha, Ltd. v. American President Lines, Ltd Notes of Committee on the Judiciary, House Report No. 93650 The Committee approved this Rule in the form submitted by the Court, with the expectation that the courts would be liberal in deciding that a genuine question is raised as to the authenticity of the original. Committee Notes on Rules2011 Amendment The language of Rule 1003 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 1004. Admissibility of Other Evidence of Content An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; (b) an original cannot be obtained by any available judicial process; (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or (d) the writing, recording, or photograph is not closely related to a controlling issue. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1946 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Basically the rule requiring the production of the original as proof of contents has developed as a rule of preference: if failure to produce the original is satisfactory explained, secondary evidence is admissible. The instant rule specifies the circumstances under which production of the original is excused. The rule recognizes no degrees of secondary evidence. While strict logic might call for extending the principle of preference beyond simply preferring the original, the formulation of a hierarchy of preferences and a procedure for making it effective is believed to involve unwarranted complexities. Most, if not all, that would be accomplished by an extended scheme of preferences will, in any event, be achieved through the normal motivation of a party to present the most convincing evidence possible and the arguments and procedures available to his opponent if he does not. Compare McCormick  207. Paragraph (1) Paragraph (2) Paragraph (3) Paragraph (4) Foster-Holcomb Investment Co. v. Little Rock Publishing Co Chicago City Ry. Co. v. Carroll Notes of Committee on the Judiciary, House Report No. 93650 The Committee approved Rule 1004(1) in the form submitted to Congress. However, the Committee intends that loss or destruction of an original by another person at the instigation of the proponent should be considered as tantamount to loss or destruction in bad faith by the proponent himself. Notes of Advisory Committee on Rules1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 1004 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 1005. Copies of Public Records to Prove Content  The proponent may use a copy to prove the content of an official recordor of a document that was recorded or filed in a public office as authorized by lawif these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1946 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Public records call for somewhat different treatment. Removing them from their usual place of keeping would be attended by serious inconvenience to the public and to the custodian. As a consequence judicial decisions and statutes commonly hold that no explanation need be given for failure to produce the original of a public record. McCormick  204; 4 Wigmore  12151228. This blanket dispensation from producing or accounting for the original would open the door to the introduction of every kind of secondary evidence of contents of public records were it not for the preference given certified or compared copies. Recognition of degrees of secondary evidence in this situation is an appropriate quid pro quo The provisions of 28 U.S.C.  1733(b) apply only to departments or agencies of the United States. The rule, however, applies to public records generally and is comparable in scope in this respect to Rule 44(a) of the Rules of Civil Procedure. Committee Notes on Rules2011 Amendment The language of Rule 1005 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 1006. Summaries to Prove Content  The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1946 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules The admission of summaries of voluminous books, records, or documents offers the only practicable means of making their contents available to judge and jury. The rule recognizes this practice, with appropriate safeguards. 4 Wigmore  1230. Committee Notes on Rules2011 Amendment The language of Rule 1006 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 1007. Testimony or Statement of a Party to Prove Content  The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1947 Mar. 2, 1987 Oct. 1, 1987 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules While the parent case, Slatterie v. Pooley supra. A similar provision is contained in New Jersey Evidence Rule 70(1)(h). Notes of Advisory Committee on Rules1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 1007 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 1008. Functions of the Court and Jury Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determinesin accordance with Rule 104(b)any issue about whether: (a) an asserted writing, recording, or photograph ever existed; (b) another one produced at the trial or hearing is the original; or (c) other evidence of content accurately reflects the content. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1947 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced in Rule 104, supra supra supra. For similar provisions, see Uniform Rule 70(2); Kansas Code of Civil Procedure  60467(b); New Jersey Evidence Rule 70(2), (3). Committee Notes on Rules2011 Amendment The language of Rule 1008 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. ARTICLE XI. MISCELLANEOUS RULES Rule 1101. Applicability of the Rules (a) To Courts and Judges. These rules apply to proceedings before:  United States district courts;  United States bankruptcy and magistrate judges;  United States courts of appeals;  the United States Court of Federal Claims; and  the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. (b) To Cases and Proceedings. These rules apply in:  civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;  criminal cases and proceedings; and  contempt proceedings, except those in which the court may act summarily. (c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding. (d) Exceptions. These rulesexcept for those on privilegedo not apply to the following: (1) the courts determination, under Rule 104(a), on a preliminary question of fact governing admissibility; (2) grand-jury proceedings; and (3) miscellaneous proceedings such as:  extradition or rendition;  issuing an arrest warrant, criminal summons, or search warrant;  a preliminary examination in a criminal case;  sentencing;  granting or revoking probation or supervised release; and  considering whether to release on bail or otherwise. (e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1947 Pub. L. 94149,  1(14) Dec. 12, 1975 89 Stat. 806 Pub. L. 95598, title II Nov. 6, 1978 92 Stat. 2673 Pub. L. 97164, title I,  142 Apr. 2, 1982 96 Stat. 45 Mar. 2, 1987 Oct. 1, 1987 Apr. 25, 1988 Nov. 1, 1988 Pub. L. 100690, title VII,  7075(c) Nov. 18, 1988 102 Stat. 4405 Apr. 22, 1993 Dec. 1, 1993 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Proposed Rules Subdivision (a) Pub. L. 89773,  1 80 Stat. 1323 Pub. L. 88623,  1 78 Stat. 1001 These various provisions do not in terms describe the same courts. In congressional usage the phrase district courts of the United States, without further qualification, traditionally has included the district courts established by Congress in the states under Article III of the Constitution, which are constitutional courts, and has not included the territorial courts created under Article IV, Section 3, Clause 2, which are legislative courts. Hornbuckle v. Toombs Id Id Id Id The bankruptcy coverage is broader. The bankruptcy courts include the United States district courts, which includes those enumerated above. Bankruptcy courts also include the district courts of the Territories and possessions to which this title is or may hereafter be applicable. 11 U.S.C.  1(10), 11(a). These courts include the district courts of Guam and the Virgin Islands. 48 U.S.C.  1424(b), 1615. Professor Moore points out that whether the District Court for the District of the Canal Zone is a court of bankruptcy is not free from doubt in view of the fact that no other statute expressly or inferentially provides for the applicability of the Bankruptcy Act in the Zone. He further observes that while there seems to be little doubt that the Zone is a territory or possession within the meaning of the Bankruptcy Act, 11 U.S.C.  1(10), it must be noted that the appendix to the Canal Zone Code of 1934 did not list the Act among the laws of the United States applicable to the Zone. 1 Moores Collier on Bankruptcy 1.10, pp. 67, 72, n. 25 (14th ed. 1967). The Code of 1962 confers on the district court jurisdiction of: (4) actions and proceedings involving laws of the United States applicable to the Canal Zone; and (5) other matters and proceedings wherein jurisdiction is conferred by this Code or any other law. Canal Zone Code, 1962, Title 3,  141. Admiralty jurisdiction is expressly conferred. Id Id The criminal rules enabling act specifies United States district courts, district courts for the districts of the Canal Zone and the Virgin Islands, the Supreme Court of the Commonwealth of Puerto Rico, and proceedings before United States commissioners. Aside from the addition of commissioners, now magistrates, this scheme differs from the bankruptcy pattern in that it makes no mention of the District Court of Guam but by specific mention removes the Canal Zone from the doubtful list. The further difference in including the Supreme Court of the Commonwealth of Puerto Rico seems not to be significant for present purposes, since the Supreme Court of the Commonwealth of Puerto Rico is an appellate court. The Rules of Criminal Procedure have not been made applicable to it, as being unneeded and inappropriate, Rule 54(a) of the Federal Rules of Criminal Procedure, and the same approach is indicated with respect to rules of evidence. If one were to stop at this point and frame a rule governing the applicability of the proposed rules of evidence in terms of the authority conferred by the three enabling acts, an irregular pattern would emerge as follows: Civil actions Bankruptcy Criminal cases This irregular pattern need not, however, be accepted. Originally the Advisory Committee on the Rules of Civil Procedure took the position that, although the phrase district courts of the United States did not include territorial courts, provisions in the organic laws of Puerto Rico and Hawaii would make the rules applicable to the district courts thereof, though this would not be so as to Alaska, the Virgin Islands, or the Canal Zone, whose organic acts contained no corresponding provisions. At the suggestion of the Court, however, the Advisory Committee struck from its notes a statement to the above effect. 2 Moores Federal Practice 1.07 (2nd ed. 1967); 1 Barron and Holtzoff, Federal Practice and Procedure  121 (Wright ed. 1960). Congress thereafter by various enactments provided that the rules and future amendments thereto should apply to the district courts of Hawaii, 53 Stat. 841 54 Stat. 22 63 Stat. 445 64 Stat. 384390 68 Stat. 497 Pugh v. United States Hatchett v. Guam From this history, the reasonable conclusion is that Congressional enactment of a provision that rules and future amendments shall apply in the courts of a territory or possession is the equivalent of mention in an enabling act and that a rule on scope and applicability may properly be drafted accordingly. Therefore the pattern set by Rule 54 of the Federal Rules of Criminal Procedure is here followed. The substitution of magistrates in lieu of commissioners is made in pursuance of the Federal Magistrates Act, P.L. 90578 October 17, 1968 82 Stat. 1107 Subdivision (b) supra Subdivision (c) Subdivision (d) supra (2) While some states have statutory requirements that indictments be based on legal evidence, and there is some case law to the effect that the rules of evidence apply to grand jury proceedings, 1 Wigmore  4(5), the Supreme Court has not accepted this view. In Costello v. United States It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. Id (3) The rule exempts preliminary examinations in criminal cases. Authority as to the applicability of the rules of evidence to preliminary examinations has been meagre and conflicting. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1168, n. 53 (1960); Comment, Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U. of Pa.L.Rev. 589, 592593 (1958). Hearsay testimony is, however, customarily received in such examinations. Thus in a Dyer Act case, for example, an affidavit may properly be used in a preliminary examination to prove ownership of the stolen vehicle, thus saving the victim of the crime the hardship of having to travel twice to a distant district for the sole purpose of testifying as to ownership. It is believed that the extent of the applicability of the Rules of Evidence to preliminary examinations should be appropriately dealt with by the Federal Rules of Criminal Procedure which regulate those proceedings. Extradition and rendition proceedings are governed in detail by statute. 18 U.S.C.  31813195. They are essentially administrative in character. Traditionally the rules of evidence have not applied. 1 Wigmore  4(6). Extradition proceedings are accepted from the operation of the Rules of Criminal Procedure. Rule 54(b)(5) of Federal Rules of Criminal Procedure. The rules of evidence have not been regarded as applicable to sentencing or probation proceedings, where great reliance is placed upon the presentence investigation and report. Rule 32(c) of the Federal Rules of Criminal Procedure requires a presentence investigation and report in every case unless the court otherwise directs. In Williams v. New York Specht v. Patterson Warrants for arrest, criminal summonses, and search warrants are issued upon complaint or affidavit showing probable cause. Rules 4(a) and 41(c) of the Federal Rules of Criminal Procedure. The nature of the proceedings makes application of the formal rules of evidence inappropriate and impracticable. Criminal contempts are punishable summarily if the judge certifies that he saw or heard the contempt and that it was committed in the presence of the court. Rule 42(a) of the Federal Rules of Criminal Procedure. The circumstances which preclude application of the rules of evidence in this situation are not present, however, in other cases of criminal contempt. Proceedings with respect to release on bail or otherwise do not call for application of the rules of evidence. The governing statute specifically provides: Information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law. 18 U.S.C.A.  3146(f). This provision is consistent with the type of inquiry contemplated in A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release,  4.5(b), (c), p. 16 (1968). The references to the weight of the evidence against the accused, in Rule 46(a)(1), (c) of the Federal Rules of Criminal Procedure and in 18 U.S.C.A.  3146(b), as a factor to be considered, clearly do not have in view evidence introduced at a hearing. The rule does not exempt habeas corpus proceedings. The Supreme Court held in Walker v. Johnston Townsend v. Sain Id Id Subdivision (e) ad hoc Notes of Committee on the Judiciary, House Report No. 93650 Subdivision (a) as submitted to the Congress, in stating the courts and judges to which the Rules of Evidence apply, omitted the Court of Claims and commissioners of that Court. At the request of the Court of Claims, the Committee amended the Rule to include the Court and its commissioners within the purview of the Rules. Subdivision (b) was amended merely to substitute positive law citations for those which were not. Notes of Advisory Committee on Rules1987 Amendment Subdivision (a) is amended to delete the reference to the District Court for the District of the Canal Zone, which no longer exists, and to add the District Court for the Northern Mariana Islands. The United States bankruptcy judges are added to conform the subdivision with Rule 1101(b) and Bankruptcy Rule 9017. Notes of Advisory Committee on Rules1988 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules1993 Amendment This revision is made to conform the rule to changes in terminology made by Rule 58 of the Federal Rules of Criminal Procedure and to the changes in the title of United States magistrates made by the Judicial Improvements Act of 1990. Committee Notes on Rules2011 Amendment The language of Rule 1101 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Amendment by Public Law 1988Subd. (a). Pub. L. 100690,  7075(c)(1) Apr. 25, 1988 Nov. 1, 1988 Pub. L. 100690,  7075(c)(2) 1982Subd. (a). Pub. L. 97164 1978Subd. (a). Pub. L. 95598,  252 section 402(b) of Pub. L. 95598 section 101 of Title 11 Pub. L. 95598,  251(a) Subd. (b). Pub. L. 95598,  251(b) 1975Subd. (e). Pub. L. 94149  Change of Name References to United States Claims Court deemed to refer to United States Court of Federal Claims, see section 902(b) of Pub. L. 102572 section 171 of this title Effective Date of 1982 Amendment Amendment by Pub. L. 97164 Oct. 1, 1982 section 402 of Pub. L. 97164 section 171 of this title Effective Date of 1978 Amendment Amendment of subds. (a) and (b) of this rule by section 251 of Pub. L. 95598 Oct. 1, 1979 section 402(c) of Pub. L. 95598 section 1471 of this title Rule 1102. Amendments  These rules may be amended as provided in 28 U.S.C.  2072. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1948 Apr. 30, 1991 Dec. 1, 1991 Apr. 26, 2011 Dec. 1, 2011  Notes of Advisory Committee on Rules1991 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules2011 Amendment The language of Rule 1102 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Rule 1103. Title  These rules may be cited as the Federal Rules of Evidence. ( Pub. L. 93595,  1 Jan. 2, 1975 88 Stat. 1948 Apr. 26, 2011 Dec. 1, 2011  Short Title of 1978 Amendment Pub. L. 95540,  1 Oct. 28, 1978 92 Stat. 2046 That this Act [enacting rule 412 of these rules and a provision set out as a note under rule 412 of these rules] may be cited as the Privacy Protection for Rape Victims Act of 1978. Committee Notes on Rules2011 Amendment The language of Rule 1103 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.