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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
provision is intended to enable the CCB
to react quickly in the event that it is inundated with more claims than it is able to handle. Claimants confronted with a potential statute of limitations issue because of the moratorium may file a claim accompanied by a declaration under penalty of perjury attesting that the statute of limitations will expire during the stay and setting forth facts in support of that conclusion.
If the CCB determines that the statute of limitations likely will expire during the stay based on the facts set forth in the declaration, the CCB will hold the claim in abeyance and conduct its compliance review of the claim after the end of the moratorium.
The Office welcomes any comments as to whether these limitations strike the proper balance between the interests of the parties and the efficient management of the CCBs work.

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B. Management of Proceedings 1. Applicability of Federal Rules of Civil Procedure and Federal Rules of Evidence The statute includes a general prohibition on formal motion practice, subject to certain exceptions, but permits parties to make various requests. 73 The statute also sets forth the types of evidence that the CCB may consider in a proceedingnamely, relevant documentary and other nontestimonial evidence as well as relevant testimonial evidence submitted under penalty of perjury.74 The statute does not otherwise speak to the applicability of the FRCP and the Federal Rules of Evidence FRE.
The Office solicited comments regarding whether it should adopt any provisions of the FRCP in areas relevant to the CCBs operations, potentially with modifications to simplify them and make them more accessible.75 The Office received several comments on this issue with wide-ranging recommendations on the applicability of the Federal Rules to CCB proceedings.
Commenters suggested additional models to look to beyond the Federal Rules 76 and recommended specific provisions that they thought the CCB
should adopt, such as those regarding initial status conferences 77 and mechanisms for summary dismissal of unsuitable claims.78 Several commenters agreed that CCB
proceedings should be more flexible and 73 17

U.S.C. 1506m.
at 1506o.
75 86 FR 16168.
76 ACUS Initial NOI Comments at 13.
77 AIPLA Initial NOI Comments at 6.
78 LCA Reply NOI Comments at 4.
74 Id.

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permissive than federal proceedings,79
especially with respect to the admission of evidence.80 Some commenters emphasized that the CCB should make use of standardized forms, as opposed to the more customized approach to submissions in federal court proceedings.81
The Office agrees with commenters that CCB proceedings should be more flexible and permissive than federal court proceedings. Similarly, and especially given the lack of need to worry about confusing a jury, and the desire not to force unsophisticated parties to learn the rules of evidence, the Board will be more flexible in accepting evidence than a strict adherence to the FRE would require.82
Accordingly, the proposed rule makes clear that the CCB is not bound by the FRCP or the FRE and that citations by parties to the FRCP and FRE will only be considered to the extent they are persuasive.
2. Scheduling Order The statute provides that the CCB will issue a scheduling order, which may be amended in the interests of justice, specifying the deadlines in a proceeding upon confirmation that it has become an active proceeding.83 The CCB may also hold conferences to address case management or discovery issues.84
Under the proposed rule, the required scheduling order will include deadlines for the filing of the respondents response to the claim including any counterclaims; the date and time of a pre-discovery conference; deadlines for service upon other parties of responses to the CCBs standard interrogatories and standard production of document requests; other discovery deadlines; the deadline for requests for leave to seek additional discovery; the date of the close of discovery; the date and time of a post-discovery conference; and the deadline for the filing of written testimony. The proposed rule does not set forth specific timeframes for each of these deadlines so that the CCB has flexibility to assess the pace of proceedings and the need for docket management.
79 AIPLA

Initial NOI Comments at 8.
Copyright Alliance, et al. Initial NOI
Comments at 22.
81 AIPLA Initial NOI Comments at 1; Copyright Alliance, et al. Initial NOI Comments at 2122;
Vient Initial NOI Comments at 4.
82 The CASE Act provides that the Board CCB
may consider various forms of evidence and that such evidence may be admitted without application of formal rules of evidence. 17 U.S.C.
1506o.
83 Id. at 1506k.
84 Id. at 1506l.
80 Id.;

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The proposed rule also provides that the CCB may hold additional conferences beyond the pre-discovery conference and the post-discovery conference on its own initiative or at the request of any party. All such conferences will be held virtually. The proposed rule also permits the CCB to amend the initial scheduling order as needed. The Office invites comments as to whether any other deadlines should be included in the initial scheduling order.
The proposed rule contemplates that one or more Officers will hold all conferences. The Office observes, however, that proceedings could be streamlined and made more efficient if Copyright Claims Attorneys are permitted to hold conferences that do not involve the resolution of a dispute and instead relate to logistical, scheduling, or other non-substantive matters. Accordingly, the Office solicits comments as to whether it has the authority to permit such conferences to be held by Copyright Claims Attorneys rather than Officers.
3. Amending Pleadings While the statute does not speak to amended pleadings, the Office proposes a rule that would generally prohibit a claimant from making substantive changes without another review by the Copyright Claims Attorneys, or after the time for a respondent to opt out has expired.85 Under the proposed rule, a claimant may freely amend its claim once as a matter of course before the claim is served by filing the proposed amendment for a compliance review.86
If the compliance review by the Copyright Claims Attorney already has been completed at the time of the proposed amendment, it must be submitted for a new review by a Copyright Claims Attorney to ensure that the claim as modified is compliant.
A claimant seeking to amend a claim during the opt-out period may do so only with the CCBs leave. To seek such leave, the claimant must submit a short letter to the CCB that sets forth the reasons for the amendment. The CCB
will freely grant leave to amend a claim if justice so requires, after considering whether the basis for the amendment should have been reasonably known to the claimant before the claim was served, along with any other relevant considerations. If the CCB grants leave for the amendment, it must still be submitted for a compliance review by a 85 See
Fed. R. Civ. Pro. 15.
detailed explanation of the compliance review can be found in the Offices notice of proposed rulemaking on initiation of CCB
proceedings. See 86 FR 5389899.
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