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December 1st – Big Changes To The FRCP; Feds Adopt “Days Are Days” Approach To Calculating Deadlines

As reported by Law.com’s Legal Technology Center, big changes to the Federal Rules of Civil Procedure (FRCP) are on the horizon.  Effective December 1, 2009, the following rules will be amended:  6, 12-15, 23, 27, 32, 38, 48, 50, 52-56, 59, 62, 65, 68, 71.1, 72, and 81.  Rules 48 and 62.1 have been added, and Rule 13(f) is abrogated.

The biggest change is to Rule 6.  Under the current version, intermediate weekends and holidays are excluded when calculating deadlines if the time period in question is 10 days or fewer.  If the time period is 11 days or more, these intermediate weekends and holidays are counted.  The Advisory Committee reports that this method of calculating days has not only led to inconsistencies and undue complexity, but also “timing games” by counsel when filing motions so that a deadline will fall on a certain day.

No, really??  Counsel playing games with deadlines?  Who could have possibly seen that coming??

On December 1, 2009, the new Rule 6 adopts the “days are days” approach.  In other words, when calculating a deadline under the FRCP, every day is counted, including intermediate weekends and holidays, for all time periods, regardless of the time period’s length.

New Rule 6 also adopts the “hours are hours” approach for counting any period stated in hours.  Frequently, a court order or local rule may state a time period for action in hours rather than days.  Under the new Rule 6, the deadline calculation begins immediately.  Every hour is counted, including intermediate weekend and holiday hours.

Last, the new Rule 6 creates a rule related to electronic filing and the accessibility of the clerk’s office.  Where the clerk’s office is inaccessible on the last day for filing, the time for filing is extended to the next accessible day.  New Rule 6 further defines that the “last day” for electronic filing ends at midnight in the court’s time zone.  This amendment clarifies ambiguity that previously existed about the deadline for electronic filing.

Other amendments to the FRCP, though not as significant, should be reviewed carefully by anyone practicing in Federal Court.  A good place to start would be reading the Law.com article here, which details all of the amendments that become effective on December 1.


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