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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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