language that a court “should” grant summary judgment 

when the record shows that the movant is entitled to 

judgment as a matter of law, recognizing limited discretion 

to deny summary judgment in such circumstances.

IV. Proposed Amendments to the Federal Rules of 

Criminal Procedure:

 The proposed amendments to Rules 5, 12.3, and 21

implement the Crime Victims’ Rights Act, 18 U.S.C. § 

3771. 

 Amended Rule 5 requires the court to consider the 

right of the victim to be protected from the defendant in 

deciding whether, and under what conditions, to release or 

detain the defendant. 

 The proposed Rule 12.3 amendment provides that 

a victim’s address and telephone number should not 

automatically be provided to the defense when a public 

authority defense is raised. If a defendant establishes 

a need for this information, the court may order its 

disclosure or fashion an alternative procedure that 

provides the defendant with the information necessary to 

prepare a defense and also protects the victim’s interests. 

 Rule 21 is amended to require the court to 

consider the convenience of victims – in addition to the 

convenience of the parties and witnesses and the interest 

of justice – in determining whether to transfer all or part 

of the proceeding to another district for trial. 

 Amended Rule 15 authorizes a deposition of a 

witness outside the United States without the defendant’s 

physical presence in very limited circumstances: where 

there is a substantial likelihood that the witness’s 

attendance at trial cannot be secured and it would be 

impossible to transport the defendant to the witness’s 

location for the deposition.

 The proposed amendment to Rule 32.1 codifies 

case law requiring a person, who is seeking release in a 

proceeding to revoke or modify probation or supervised 

release, to show by clear and convincing evidence that the 

person will not flee or pose a danger to any other person 

in the community.

 

V. Proposed Amendment to the Federal Rules of 

Evidence:

 The proposed amendment to Rule 804 extends the

corroborating circumstances requirement to all 

declarations against penal interest offered in criminal 

cases.

Public hearings are scheduled to be held on the 

amendments to 

1 Appellate Rules in Washington, D.C., on January 

 30, 2009, and in New Orleans, Louisiana, on 

 February 11, 2009;

 1 Bankruptcy Rules in New York, New York, on 

 January 23, 2009, and in San Francisco, California, 

 on February 6, 2009; 

 1 Civil Rules in Washington, D.C., on November 17, 

 2008, in San Antonio, Texas, on January 14, 2009, 

 and in San Francisco, California, on February 2, 

 2009; 

 1 Criminal Rules in Los Angeles, California, on 

 January 16, 2009, and in Dallas, Texas, on February 

 9, 2009; and

 1 Evidence Rules in San Antonio, Texas, on January 

 13, 2009, and in Atlanta, Georgia, on January 26, 

 2009.

Those wishing to testify should contact in writing the 

Secretary at the address on the next page at least 30 

days before the hearing.

Written comments on the proposed rule amendments 

sent by mail should be addressed to:

Peter G. McCabe, Secretary

Committee on Rules of Practice and Procedure

of the Judicial Conference of the United States

Thurgood Marshall Federal Judiciary Building

Washington, D.C. 20544

Comments on the proposed rule amendments may 

also be sent electronically to <Rules_Comments@

ao.uscourts.gov>.

In accordance with established procedures, all 

comments submitted on the proposed amendments are 

available for public inspection.

The text of the proposed rule amendments and the 

accompanying Committee Notes can be found on the 

United States Courts website at <www.uscourts.gov/

rules>. For further information, copies of this brochure 

or the Request for Comment pamphlets, or other 

materials, contact:

John K. Rabiej, Chief

Rules Committee Support Office

Administrative Office of U. S. Courts

Thurgood Marshall Federal Judiciary Building

Washington, D.C. 20544

(202) 502-1820

0 0 0

Administrative Office of the U.S. Courts

Thurgood Marshall Federal Judiciary Building

Washington, D.C. 20544

Preliminary Draft

of

Proposed Amendments 

to the

Federal Rules

of

Practice and Procedure

SUBMITTED FOR PUBLIC COMMENT

Comments Due by February 17, 2009

Administrative Office of the U. S. Courts

James C. Duff, Director

A SUMMARY FOR BENCH AND BAR

(AUGUST 2008)
Request for Comment on Proposed 

Amendments to the Federal Rules 

of Practice and Procedure

 The Judicial Conference’s Advisory Committees on 

Appellate Rules, Bankruptcy Rules, Civil Rules, Criminal 

Rules, and Evidence Rules are seeking public comment 

on proposed rules amendments. The Judicial Conference 

Committee on Rules of Practice and Procedure (Standing 

Committee) has not approved these proposals, and they 

have not been presented to the Judicial Conference or 

the Supreme Court. They are published for a six-month 

period of public comment from the bench and bar.

 The full text of the proposed rules amendments and 

explanatory Committee Notes are set out in the Request 

for Comment pamphlets, which are posted at <www.

uscourts.gov/rules> and are available on request from the 

Secretary to the Standing Committee. The following 

synopses highlight significant aspects of the proposed 

Appellate, Bankruptcy, Civil, Criminal, and Evidence Rule 

amendments.

 The rules committees welcome all comments, 

whether favorable, adverse, or otherwise. We do not 

want to limit the public to agreeing or disagreeing; we 

also want alternative suggestions. Comments on these 

proposals will be considered carefully by the respective 

rules committees, which consist of experienced trial and 

appellate lawyers, scholars, and judges.

 Written comments or comments sent electronically 

must be received by the Secretary to the Standing 

Committee no later than February 17, 2009. Comments 

may be sent electronically to <Rules_Comments@

ao.uscourts.gov>. Comments may be sent by conventional 

mail to the Secretary at the address provided at the end of 

this brochure. 

 In addition to written comments, public hearings are 

also scheduled to provide opportunities to appear and 

comment on the proposals. Requests to appear at a public 

hearing must be received by the Secretary to the Standing 

Committee no later than 30 days before the scheduled 

hearing date. The dates and places of the public hearings 

are provided at the end of this brochure.

 After the public comment period, the proposed 

amendments will be reconsidered in light of the comments 

received. Amendments require approval by the relevant 

advisory committee, the Standing Committee, the Judicial 

Conference, and the Supreme Court, after which they are 

sent to Congress. Approved amendments will take effect 

on December 1, 2010, unless Congress affirmatively acts 

to defer or reject them.

I. Proposed Amendments to the Federal Rules of 

Appellate Procedure:

The proposed amendment to Rule 1 defines “state” to 

include the “District of Columbia and any United States 

commonwealth or territory.” 

 Rule 29 is amended to conform to the proposed 

amendment to Rule 1, substituting the term “state” 

for the rule’s current reference to “State, Territory, 

Commonwealth, or the District of Columbia.” The rule is 

also amended to parallel recent changes to Supreme Court 

Rule 37.6, which establish disclosure requirements for 

amicus briefs.

 Appellate Form 4 is amended to avoid asking 

for certain personal information. The amendment is 

consistent with privacy protections provided under the 

E-Government Act of 2002 and Appellate Rule 25(a)(5). 

II. Proposed Amendments to the Federal Rules of 

Bankruptcy Procedure:

 New Rule 1004.2 requires that the entity filing a 

chapter 15 petition state on the petition the country of the 

debtor’s main interests and list each country in which a 

case involving the debtor is pending. 

 The proposed amendment to Rule 1007 shortens the 

time for a debtor to file a list of creditors after an order for 

relief is entered in an involuntary case. The amended rule 

also extends the time for individual debtors in a chapter 

7 case to file the statement of completion of a personal 

financial management course.

 Rule 1014 is amended to apply the rule’s venue 

provisions to chapter 15 cases involving foreign 

proceedings. 

 Rule 1015 is amended to apply the rule’s 

consolidation and joint administration provisions to 

chapter 15 cases involving foreign proceedings.

 Amended Rule 1018 includes proceedings contesting 

chapter 15 petitions for recognition of foreign proceedings 

among those subject to enumerated rules in Part VII of 

the Bankruptcy Rules. The amendment also clarifies the 

rule’s application to contests over involuntary petitions 

and not to matters that are merely related to a contested 

involuntary petition.

 The proposed amendment to Rule 1019 provides a 

new time period to object to a claim of exemption when 

a case is converted to chapter 7 from chapter 11, 12, or 

13, unless the conversion occurs more than one year after 

the first order confirming a plan (even if later modified) 

or unless the case was previously pending under chapter 

7 and the objection period had expired in the original 

chapter 7 case.

 Amended Rule 4004 sets a new deadline for filing an 

objection to a debtor’s discharge on the ground that the 

debtor had earlier received a discharge. The amended rule 

also prevents the entry of a discharge in chapter 11 and 13 

cases until the debtor files a statement of completion of a 

personal financial management course.

 Rule 5009 is amended to require the clerk to provide 

notice to individual debtors in chapter 7 and 13 cases that 

their case may be closed without the entry of a discharge 

if they fail to file a timely statement that they have 

completed a personal financial management course. The 

amended rule also requires a foreign representative in a 

chapter 15 case to file and give notice of the filing of a final 

report in the case.

 Proposed new Rule 5012 establishes the procedure 

in a chapter 15 case for obtaining the approval of 

an agreement about communications in, and the 

coordination of the proceedings with, cases involving the 

debtor pending in other countries.

 Under the proposed amendment to Rule 7001, a 

party may, in a motion only and not in a complaint, object 

to a discharge on the ground that the debtor had recently 

been granted a discharge in an earlier case.

 The Rule 9001 amendment adds § 1502 to the list 

of definitional provisions in the Code that apply to the 

Bankruptcy Rules.

III. Proposed Amendments to the Federal Rules 

of Civil Procedure:

 Rule 26 is amended to address two distinct topics. 

The first deals with expert witnesses who are not required 

to prepare a detailed report under Rule 26(b)(2)(B). 

Under the proposed amendment to Rule 26(a)(2), the 

party (not the expert witness) must disclose the subject 

matter of the expected expert testimony and a summary 

of the expected facts and opinions. The second topic 

applies the work-product protections of Rule 26(b)(3)(A) 

and (B) to limit discovery of drafts of expert disclosure 

statements or reports and, with three exceptions, of 

communications between expert witnesses and counsel 

regardless of form (oral, written, electronic, or otherwise). 

The exceptions are for those parts of the attorney-expert 

communications regarding compensation, identifying facts 

or data considered by the expert in forming the opinions, 

and identifying assumptions relied on by the expert in 

forming the opinions.

 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 changes are procedural 

only and do not affect the standard for granting summary 

judgment. The proposed rule requires that unless the 

court orders a different procedure in a case, a party 

moving for summary judgment must submit a statement 

of facts that it asserts are not in genuine dispute and 

entitle it to summary judgment. The statement must 

list the asserted undisputed material facts in separate, 

numbered paragraphs, with citations to the record. 

The party opposing the motion must file a response 

to the statement that addresses each fact by accepting, 

disputing, or accepting it in part and disputing it in 

part, either generally or for purposes of the motion 

only. The statement and response are separate from the 

briefs. Other proposed changes include addressing the 

consequences of failing to respond or responding in a way 

that does not conform to the rule and recognizing the 

well-established practice of granting summary judgment 

on part or all of a claim or defense.

 Comment is especially sought on whether to retain 

the current language carrying forward the present Rule 56