Federal Bar Update: Federal rule changes take effect Dec. 1

Northern District

Two N.D. Ind. Local Rules are amended Dec. 1. First, Local Rule 7.1(e) is amended as follows:

All briefs shall cite to supporting legal authority. Ordinarily, copies of cited authorities need not be appended to court filings. However, a A party citing a decision, statute, or regulation that is not available on Westlaw or Lexis/Nexis shall attach a copy to the document filed with the court. In addition, if a party cites a decision, statute, or regulation that is only available through electronic means (e.g. Lexis/Nexis, Westlaw or from the issuing court’s website), upon request that party shall promptly furnish a copy to the court and other parties requesting party.

Second, Local Rule 56.1 is significantly re-worded but not to effect any substantive change. With the underlying amendments to FRCP 56 effective Dec. 1, the advisory committee and court simply deemed it prudent to revisit Local Rule 56.1 and simplify it. Also, the court adopted a simplified Notice for Pro Se Litigants for parties moving for summary judgment against a pro se litigant.

Southern District

The Southern District’s Advisory Committee is similarly reviewing Local Rule 56.1 in light of FRCP amendments, and will make non-substantive stylistic recommendations, if any, to the court in 2011. The Southern District has otherwise posted for comment proposed amendments from the advisory committee to the following local rules:

Local Rule 23.1 – would delete the 90-day deadline for moving to certify a class, leaving this deadline instead to case management plans on a case-by-case basis.

Local Rule 37.1 – revised to read:

Prior to involving the court in any discovery dispute, including disputes involving depositions, counsel must confer in a good faith attempt to resolve the dispute. If any such dispute cannot be resolved in this manner, counsel are encouraged to contact the chambers of the assigned Magistrate Judge to determine whether the Magistrate Judge is available to resolve the discovery dispute by way of a telephone conference or other proceeding prior to counsel filing a formal discovery motion. When the dispute involves an objection raised during a deposition that threatens to prevent completion of the deposition, any party may recess the deposition to contact the Magistrate Judge’s chambers.

(b) In the event that the discovery dispute cannot be resolved informally, counsel may file a motion to compel or other motion raising the dispute. Any motion raising a discovery dispute must contain a statement setting forth the efforts taken to resolve the dispute, including the date, time, and place of any discovery conference and the names of all participating parties. The court may deny any motion raising a discovery dispute that does not contain such a statement.

Local Rule 83.7 – adds the following requirement on a motion to withdraw as counsel: “Such petition must also include the client’s contact information, including a current address and telephone number.”

Federal Rules

Rule 26 is amended effective Dec. 1 to apply work-product protection to the discovery of draft expert reports. Also, the amendments protect most communications between an expert and retaining lawyer as subject to work-product, although communications about the following are open to discovery: (1) compensation to the expert; (2) facts and assumptions provided to the expert and considered in forming opinions.

Also, amended Rule 26 addresses witnesses who will provide expert testimony but who are not required to provide a written 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 do not 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.”

Other key summary judgment changes include: (1) when an assertion of fact has not been properly supported by the party or responded to by the opposing party, the court may consider the fact undisputed for purposes of the motion, grant summary judgment if supported by the motion and supporting materials, or afford the party an opportunity to amend the motion; and (2) the amendments expressly state that “partial summary judgments” may be entered.

These amendments will be among the topics discussed at the next Federal Bar Seminar on Friday, Dec. 17, from 1:30 – 4:45 p.m. in Indianapolis. Among the speakers will be Chief Judge Young, Judge Pratt, and Magistrate Judge Lynch. Mark your calendars and register online at www.theindianalawyer.com.•

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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 the author’s.