Effective December 1, 2019, there will be a number of changes to FRAP to include the usual tweaks reflecting E-Filing and service realities as well as cleaning up rules that reference other rules with these substantial changes. For example, Rules 3, 5, 13, 21, 28, 32 and 39 see some minor wording changes such as removing references to “mail” and “proof of service,” or changing “Corporate Disclosure” to “Disclosure,” to bring those rules in line with the more substantive revisions to Rules 25 and 26.1.

Rule 25(d) is an interesting change that appears to remove the requirement for a certificate of service when a document is fully served via the E-Filing system. Subsection (d)(1) was changed to apply more narrowly in cases where paper “was served other than through the court’s electronic filing system.” The implication is that for a filing that was fully served via the E-Filing notice, no certificate of service should be required. Practitioners should still add a proof of service anytime there was a party not receiving electronic service (pro se parties, for example) or a document was filed in a form that could not be E-Filed.

Rule 26(c) was rewritten to clarify that the three additional days added to the end of a period for certain types of services apply only when the document was not electronically served or otherwise delivered on the date stated in the proof of service.

Rule 26.1 was substantially revised and broadened (dropping “Corporate” from the title) so that the rule adds more disclosure requirements. Those revisions include additional subsections relating to Nongovernmental Corporations and Intervenors, Organizational Victims in a Criminal Case, and requirements in a Bankruptcy Case. New subsection (b) expends the requirement, to the extent due diligence will allow, to the government to disclose corporate information of organizational victims in a criminal case. New subsection (c) adds the requirement in a bankruptcy case to identify each debtor not named in the caption and to include the appropriate corporate disclosures for those where in 26.1(a) would apply. Old subsections (b) and (c) are now (d) and (e) with some minor changes in wording.

You can read more about the changes to the Federal Rules of Appellate Procedure for Rules 3, 5, 13, 21, 25, 26, 26.1, 28, 32 and 39, here.

Tagged: Appellate Practice