Prof. Gensler Provides Update on Civil Rules Committee Proceedings

Prof. Steven Gensler (Oklahoma) has sent the following update on the activities of the civil rules committee to the Civil Procedure Professors Listserv:

The Civil Rules committee met in April. The Standing Committee met last week. Here’s the latest, at least in the Civil Rules arena:

The Standing Committee approved the Time-Counting Project for publication. As you may recall, the TCP is a coordinated project to standardize the method of calculating time periods across the Civil, Appellate, Bankruptcy, and Criminal Rules. For the Civil Rules, the biggest change is that all days will count when calculating all time periods. This would change current practice under Rule 6(a), which excludes weekends and holidays for periods of less than eleven days. To compensate for the new counting method, some of the shorter time periods in the rules will be lengthened – e.g., from 10 days to 14 days. The “last day rule” under current Rule 6(a) remains; if the period would end on a weekend day, holiday, or day when the clerk’s office otherwise is inaccessible, then the period extends to the next “countable” day. There’s quite a bit more to the project, but it’s more than I can relate in a brief update. The full proposal will be available soon when it is published for comment.

At the April Civil Rules meeting, the committee continued work on projects on Rules 26 and 56.

The Rule 26 project is looking at several issues involving expert disclosures and expert discovery. The proposals are still being developed, but it is likely that proposed amendments will be forwarded to the Standing Committee for permission to publish in the next year.

The Rule 56 project as currently conceived would amend Rule 56 to implement a uniform motion practice, as well as to provide clearer authority in the rule for various established practices like motions for partial summary judgment. Work on the Rule 56 proposal is substantially complete, and it is expected that the committee will present it in full to the Standing Committee for permission to publish when the Standing Committee next meets in January 2008. However, some aspects of the Rule 56 proposal that involve timing were presented to the Standing Committee last week and approved for publication as part of the Time Counting Project. When the Rule 56 proposal is presented in full, I think we can expect some lively debate, at least if the 1992 experience is any indicator. The current proposal is narrower than the '92 proposal, but people tend to have strong views on summary judgment, just as they did 15 years ago.