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Posted November 2025Recent amendments to the Federal Rules of Civil Procedure will take effect on December 1, 2025. Of note, Rule 26(f)(3)(D) has been amended to direct the parties to address in their discovery plan how they will comply with the requirement in Rule 26(b)(5)(A) that they must provide a privilege log if they withhold materials on the grounds of privilege or work product. The amended Rule provides: A discovery plan must state the parties’ views and proposals on any issues about claims of privilege or of protection as trial-preparations materials, including the timing and method for complying with Rule 26(b)(5)(A)…” Amended Rule 26(f)(3)(D).
A “key purpose” of the amendment is to require discussion of privilege logs at the outset of litigation. The committee note indicates that the amendment should minimize problems that occur when a party’s objections to compliance with Rule 26(b)(5)(A) emerge only toward the close of the discovery period. In other words, the amendment is intended to prevent late disputes about withheld documents. Rule 16(b) has also been amended to provide that the court may address the timing and method of the parties’ compliance with Rule 26(b)(5) (A) in its scheduling order.
Also of note, new Rule 16.1 provides a framework for the initial management of multidistrict litigation (MDL) proceedings and will take effect after several years of work by the MDL rules subcommittee.
This past June, the Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee) released new Rule of Evidence 707 for public comment. The purpose of proposed Rule 707 is to regulate “machinegenerated evidence” that is unaccompanied by human expert testimony. The proposed Rule provides: “When machine-generated evidence is offered without an expert witness and would be subject to Rule 702 [governing the admissibility of expert testimony] if testified to by a witness, the court may admit the evidence only if it satisfies the requirements of Rule 702(a)-(d). This rule does not apply to the output of simple scientific instruments.”
The committee note to proposed Rule 707 explains that machine-generated evidence can involve the use of a computer-based process or system to make predictions or draw inferences from existing data, but there can be reliability concerns just like there can be reliability concerns about expert witnesses. These concerns can involve the use of a process for purposes that were not intended, analytical error or incompleteness, and inaccuracy or bias built into the underlying data or formulas, etc.
Proposed Rule 707 provides that if machine output is offered without a human expert to accompany it, and where the output would be treated as expert testimony if it came from a human expert, its admissibility is subject to the requirements of Rule 702(a)-(d). The committee note indicates that a Rule 707 analysis will usually involve, among other things, considering (1) whether the inputs into the process are sufficient for purposes of ensuring the validity of the resulting output, and (2) whether the process has been validated in circumstances sufficiently similar to the case at hand.
The comment period for proposed Rule 707 is open through February 16, 2026. For more information on submitting comments, click here: Proposed Amendments Published for Public Comment. Proposed Amendments Published for Public Comment. You can also find more information on amendments to Federal Rules of Civil Procedure 16 and 26 and information about amendments to the Federal Rules of Appellate Procedure and the Bankruptcy Rules click here: Pending Rules and Forms Amendments.
