Federal Bar Update: More federal rule changes on horizon

Each year, amendments to various federal rules take effect unless Congress acts to block them. For 2010, the Supreme Court approved a package of amendments in late April that will amend several appellate rules, bankruptcy rules, criminal rules, civil rules, and an evidence rule. These amendments will take effect this Dec. 1 unless Congress intervenes, which is unlikely. So that federal practitioners have the key upcoming amendments to the Federal Rules of Civil Procedure on their radar, this article outlines those changes to FRCP 8, 26, and 56. More detailed commentary on the amendments to Rules 26 and 56 will be provided in this column near the Dec. 1 effective date.

First and easiest, Rule 8 will be amended to delete “discharge in bankruptcy” from the rules list of affirmative defenses that must be asserted in response to a pleading. The committee explained: “Under 11 U.S.C. § 524(a), a discharge voids a judgment to the extent that it determines the debtor’s personal liability for the discharged debt. Though the self-executing statutory provision controls and vitiates the affirmative-defense pleading requirement, the continued reference to ‘discharge’ in Rule 8’s list of affirmative defenses generates confusion, has led to incorrect decisions, and causes unnecessary litigation. The amendment conforms Rule 8 to the statute.”

Second, Rule 26 will be amended to apply work-product protection to the discovery of draft expert reports and, with three exceptions, to communications between counsel and expert witnesses. In recommending this change, the committee explained: “The proposed amendments to Rule 26 recognize that discovery into the bases of an expert’s opinion is critical. The amendments make clear that while discovery into draft reports and many communications between an expert and retaining lawyer is subject to work-product protection, discovery is not limited for the areas important to learning the strengths and weaknesses of an expert’s opinion. The amended rule specifically provides that communications between lawyer and expert about the following are open to discovery: (1) compensation for the expert’s study or testimony; (2) facts or data provided by the lawyer that the expert considered in forming opinions; and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.”

Also, the proposed amendments to Rule 26 address witnesses who will provide expert testimony but who are not required to provide a Rule 26(a)(2)(B) report because they are not retained or specially employed to provide such testimony, or they are not employees who regularly give expert testimony. Under the amendments, the rule makes clear that the lawyer relying on such a witness must disclose the subject matter and summarize the facts and opinions that the witness is expected to offer.

Finally, Rule 56’s amendments are significant but are expressly not to change summary judgment standards or burdens. In FRCP 56(a), the term “shall” will return, replacing the term “should” that was injected as part of the 2007 overall stylistic amendments to the Federal Rules. The amended rule will again read, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Also, the committee had considered amendments to Rule 56 that would adopt strict point/counterpoint factual designations as have been adopted by local rule in some Districts (including the Southern District of Indiana, which adopted such a procedure for several years then abandoned it as too cumbersome). The committee opted against such procedures but did adopt the following amendments summarized as follows: “[T]he amendments adopt a provision found in many local rules that requires a party asserting a fact that cannot be genuinely disputed to provide a ‘pinpoint citation’ to the record supporting its fact position. Other salient changes: (1) recognize that a party may submit an unsworn written declaration, certificate, verification, or statement under penalty of perjury in accordance with 28 U.S.C. § 1746 as a substitute for an affidavit to support or oppose a summary-judgment motion; (2) provide courts with options when an assertion of fact has not been properly supported by the party or responded to by the opposing party, including considering the fact undisputed for purposes of the motion, granting summary judgment if supported by the motion and supporting materials, or affording the party an opportunity to amend the motion; (3) set a time period, subject to variation by local rule or court order in a case, for a party to file a summary-judgment motion; and (4) explicitly recognize that ‘partial summary judgments’ may be entered.”

These amendments will be among the topics discussed at the next Federal Civil Practice Update from 1:30 to 4:45 p.m. Dec. 17. Mark your calendars and watch for registration information in Indiana Lawyer. •

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John Maley – [email protected] – is a partner with Barnes & Thornburg practicing federal and state litigation, employment matters, and appeals. The opinions expressed in this column are those of the author.