A broad series of changes to the Federal Rules of Civil Procedure have gone into effect as of December 1, 2010, substantially changing Rules 8, 26, and 56. These amendments will affect commercial litigation in federal courts throughout the country. Below is a brief summary of the amendments.
Rule 26 contains the most significant changes, relating to expert witnesses who have been retained to testify at trial. Previously, drafts of expert reports and related communications were discoverable under Seventh Circuit case law (and the law in some other circuits). The amendments to Rule 26 are aimed to resolve the circuit split concerting the scope of discovery from testifying experts.
As amended, Rule 26(b)(4) allows only for discovery of the “facts or data considered by the witness” in forming the expert opinion. The amended Rule extends work-product protection to both oral and written communications between experts and the attorneys retaining them, including draft reports. The amendment contains three exceptions to the extension of the work-product doctrine: (1) compensation for the expert’s study or testimony; (2) facts or data provided by the lawyer that the expert considered in forming the opinions; and (3) assumptions provided to the expert by the lawyer that the expert relied on in forming an opinion.
The comments of the Supreme Court Rules Committee state that: “The [amendment] is designed to protect counsel’s work product and ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery.” It is important to note, however, the Committee’s comment that “inquiry about communications the expert had with anyone other than the party’s counsel about the opinions expressed is unaffected by this rule.”
The amendment to Rule 26(a)(2)(C) clarifies the disclosures that must be made with respect to experts who are not obligated to submit formal expert reports under Rule 26(a)(2)(B) because they were not specifically retained to testify at trial. These disclosures are limited to “the subject matter on which the witness is expected to present [expert] evidence” and.”a summary of the facts and opinions to which the witness is expected to testify.”
The amendments to Rule 56 contain both substantive and procedural changes. With respect to substance, the earlier version of Rule 56(c)(2) had provided that summary judgment “should” be granted if the moving party meets its factual and legal burdens. In the amendment, Rule 56(a) EXPERIENCE Atlanta Delaware Chicago Indiana Michigan Minneapolis Ohio Washington, D.C. substitutes “shall” for “should,” arguably depriving the district court of discretion to deny a meritorious summary judgment motion. Rule 56(a) also makes clear that partial summary judgment is permitted, stating that the court may grant partial summary judgment “part of [a] claim or defense ….” Rule 56(f) allows district courts to enter a judgment independent of the summary judgment motion. After giving reasonable notice and a time to respond, a court may grant judgment for a nonmovant or grant a summary judgment on grounds not raised by a party.
Rule 56(b) sets a default deadline, subject to variation by local rule or a case management order, for the filing of a summary judgment motion; any summary judgment motion must be filed no later than 30 days after the close of discovery.
The procedural Rule 56 amendments impose more stringent requirements regarding the use of record evidence in support of or opposition to a motion for summary judgment. Amended Rule 56(c)(1) now requires that a party asserting a fact that cannot be genuinely disputed—or can be disputed—provide a pinpoint citation to “particular parts” of the record supporting its factual position. Rule 56(e) delineates options for the court when a party fails to assert a fact properly or fails to respond to an asserted fact, including allowing the party to amend the motion, deeming the fact admitted, or granting summary judgment. Rule 56(c)(4) recognizes that a party may submit an unsworn written declaration under penalty of perjury as a substitute for an affidavit to support or oppose a summary judgment motion. Rule 56(c)(2) clarifies that a party may challenge the admissibility of summary judgment evidence and assert an objection that “a fact cannot be presented in a form that would be admissible in evidence.”
Finally, Rule 8 has been amended to delete “discharge from bankruptcy” from the list of affirmative defenses that must be asserted in a responsive pleading. Cautious practitioners may still opt to include this defense in answers, but are no longer required to do so.