On July 1, 2020, the Federal Circuit’s Amendments to its Rules of Practice took effect. These Amendments were adopted to clarify and streamline the Court’s current practices, especially in view of the 2019 amendments to the Federal Rules of Appellate Procedure. To assist practitioners, the Federal Circuit released a summary of its Adopted Rule Amendments. While most of these Amendments are stylistic and clarify changes to the Rules, there are a few changes worth pointing out.
New Rule 25.1 Privacy and Confidentiality
New Federal Circuit Rule 25.1 consolidates the Court’s procedures for handling confidential or private information and protective orders that were originally set forth in the prior versions of Rules 25, 27, 28, and 30. While new Rule 25.1 maintains the previous allotment of fifteen unique words that can be marked as confidential (additional words may be sought by motion), redactions are now required to include a general descriptor of the redacted information e.g., “dollar amount,” “number of items,” “chemical name,” to provide a reader with a general description of the subject matter of the information being redacted.[1] This new requirement is expected to improve readability and comprehension of papers containing redactions.
Amendments to Rule 34 Oral Argument
The amendments to Rule 34 codify the Court’s current practice of requiring parties to provide notice in writing (e.g. via Form 32) of any scheduling conflicts within seven days of the clerk of court’s issuance of the notice requesting scheduling conflict information.[2] Form 32 allows a party to list up to ten dates of unavailability along with a written statement showing good cause for each scheduling conflict. Without a sufficient showing of good cause, the scheduling conflict will not be considered by the Court.
Rule 34 has also been amended to limit arguing counsel to no more than two counsel per side and no more than one counsel for each party absent leave by the Court. Arguing counsel can be identified via Form 33.
The Practice Notes to Rule 34 also reminds practitioners that if a party wishes to raise a new authority at oral argument that was not submitted to the court, the party should provide a copy of the new authority to the opposing party in advance of the oral argument by email or if time permits by filing a citation of supplemental authority pursuant to Federal Rule of Appellate Procedure 28(j). This new provision should help eliminate the problem of parties citing cases for the first time during oral argument and accusations of “sandbagging.”
Closing Thoughts
The Federal Circuit’s Amended Rules of Practice should be viewed as a welcomed effort to streamline procedures for appealing cases to the Federal Circuit. In addition to codifying many of the existing practices in front of the Federal Circuit, the rule changes are expected to provide more transparency and help reduce confusion in navigating the appellate process.
[1] Fed. Cir. Rule of Practice Rule 25.1(e)(1)(B).
[2] Fed. Cir. Rule of Practice Rule 34(d).
