Recent Proposed State/Federal Rules Changes as of August 2016

The Rules Committee for the Federal Rules of Civil Procedure has proposed changes affecting electronic service, class action cases, the stay of execution on judgment pending post-trial motions and appeal, and proceedings against bonds or surety.

Rule 5, governing service of motions and papers after the complaint, would be modified as follows to accommodate the increasing reliance on electronic communication and storage of information in the practice of law.

• E-filing will be mandatory on a national level
• An electronically filed motion or paper will be equivalent to a written paper
• An attorney’s username, password, and name on the signature block of a document will be equivalent to a signature

The notice of electronic filing generated by the court’s e-filing system will constitute certificate of service. There will be no need to include a certificate of service at the end of a document, after the signature block, although the committee noted that cautious lawyers may well continue to do so.

Service can be made in hand, as before, and also by electronic means such as e-mail with the person’s written consent, as before. Additionally, when a motion or paper is e-filed, service is complete to every person registered for electronic filing on that case. In other words, everyone who receives a notice of filing from the court with a link to the document has been served with the document.

Rule 23, governing class actions, would be amended. The amendments primarily affect settlements of class actions. I cannot comment on whether the amendments are plaintiff-friendly or not, and will not summarize them as we are not doing class actions at this time.

Rule 62, governing stay of execution of judgment pending post-trial motions and appeal, would be amended to clarify that a defendant can obtain a stay through the entire appeal process by posting a bond or other security. The committee used the word ‘security’ to allow a broader range of options to a defendant, for instance a letter of credit rather than a bond.

Rule 65, governing proceedings against surety, would be amended to apply to bonds or other security. This simply mirrors the availability of ‘security’ in Rule 62.

The Committee is taking public comment on these changes. The proposed Rules would affect the local rules for the District of Maine.

See a copy of the proposed rules and a link to comment on them.