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Federal Bar Update: More federal rule changes on horizon

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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. •

__________

John Maley – jmaley@btlaw.com – 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.

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  1. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  2. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  3. It's a capital offense...one for you Latin scholars..

  4. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

  5. The promise of "Not to Tell" is the biggest lie ever given to a Birth Mother. THERE WERE NEVER ANY PROMISES GIVEN TO ANY OF US. One of the lies used to entice us to give up our Babies. There were many tactics used to try to convince us that it was best for Mother and Baby to cut the cord at birth. They have no idea of the pain and heartache that was caused by their attitude. The only thing that mattered was how great and wonderful they appeared to the prospective parents and their community. I completed my search, but that didn't stop the pain, heartbreak and the tears of the last 62 Years. I keep track and do know that he is alive, well educated and a musician. That little knowledge in itself is a Godsend to me. I pray that other Mothers also know that much and more to help heal their pain and open wounds. open wounds.

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