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Federal Appellate Rule Changes

The amendments to the Federal Rules of Appellate Procedure,effective December 1, 2016, arise, for the most part, out of changes in technology.Some of the amendments refine prior Rules that, while taking into account technology, were nevertheless skeptical of its efficacy and reliability.

Service by Electronic Means

For example, it is now acknowledged that service by electronic means is reliable and virtually instantaneous, and that including electronic service in the three day rule for snail mail is both unnecessary and anachronistic.[1]When Rule 25(c) was amended in 2002 to provide for electronic service,it was nevertheless included in the means of service that allowed the added three days, based on concerns that transmissions might be delayed or that “incompatible systems” might make it difficult to open attachments.The AdvisoryCommittee on Appellate Rules has now decided that those concerns are alleviated by both advances in technology and by lawyers’ “widespread skill”in using computers.Therefore, newly-amended Rule 26(c) now removes service by electronic means under Rule 25(c)(1)(D) from the means of service that allow three added days to the specified time after service.

While sensible in its own terms, the amendment nevertheless raises new questions. When it was presented to the lawyers in my own firm, there was an immediate outcry about spiteful opposing counsel tending to serve electronically after business hours, or even playing with timing such that papers were due the day after Thanksgiving.The Committee did address this issue, acknowledging that electronic service after business hours or just before or during a weekend or holiday could result in a reduction in time to respond.The Committee suggested that “extensions of time may be warranted to prevent prejudice.”See Committee Note.However, the Committee’s practical suggestion is not codified, and it is unclear how the Judges or individual Circuits will respond to such gamesmanship.

I also recommend that you always check your local rules.For example, under Ninth Circuit Rule 26-2, an additional three days for service by electronic means will continue to be added to those deadlines that are based on service of another document.Seeblast@ca9.uscourts.gov.

Time-Extending Motion

There is one change that appears, at first glance, to be just a change in language but is actually substantive.Rule 4(a)(4)(A) clarifies the effect of a so-called “time-extending motion.”Previously, the Rule provided that if a party “timely files in the district court” certain post-judgment motions,the time to file an appeal runs from the entry of the order disposing the last such remaining motion.There was a circuit split in the meaning of “timely” – did it mean timely under the Rules? Timely based on court order setting a different due date?Or timely based on stipulation or simply failure by the opposing party to object?See i.e.Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 474 (6th Cir. 2007)(the time limits set by Rules 6 and 59(e) constitute an affirmative defense to an untimely Rule 59(e) motion, which the party opposing the motion is capable of forfeiting);cfLizardo v. United States,619 F.3d 273, 278 (3d Cir.2010)(untimely motions do not toll the period for filing a notice of appeal “even if the party opposing the motion did not object to the motion’s untimeliness and the district court considered the motion on the merits”);Blue v. Int’l Broth. of Elec. Workers Local Union, 159, 676 F.3d 579, 583 (7th Cir. 2012)(“Third Circuit has the better of the argument”).The Rule now provides that if a party files in the district court any of the specified motions “and does so within the time allowed by those rules” the time to file an appeal runs from the entry of the order disposing of the last such remaining motion.The amendment accordingly rejects the 6thCircuit approach and provides that a motion made after the time allowed by the Rules will not qualify as a time-extending motion.

A series of Rule changes address length limits, mostly, again, arising out of changes in technology.The Rules Committee explains that, while word limits have been added to or replaced page limits, the original word limits were derived from the assumption that one page is equivalent to 280 words.In 1998, the length limit for principal briefs was converted from 50 pages to 14,000 words.Long time practitioners happily greeted the change, as theiropponents (never themselves) could no longer subtly play with margins and “widows and orphans” typography.Critics questioned the conversion ratio and judges expressed concern about the length of briefs.The amendments now reflect a conversion ratio of 260 words per page.Rules 5, 21, 27, 28, 28.1, 32,35 and 40 provide word limits using the 260 word equivalent.The Rules retain page limits for papers prepared using typewriters or by hand.The prior 14,000 word limit for a principal brief has been reduced to 13,000 words, and the word limit for a reply brief has been reduced from 7,000 to 6,500 words.But again, always check your local rules.The 9thCircuit Court of Appeals has retained the existing word limits for briefs.

As we enter the next round of appellate rule amendments,we can happily anticipate and embrace a system that readily adapts to changes in technology.

[1]Given that the U.S. Postal Service is $15 billion in debt,http://www.newsweek.com/do-we-need-postal-service-319243, it is unclear how long we will be doing any type of service by regular mail.

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