Prof. Gensler Provides an Update on the Recent Meeting of the Advisory Committee on Civil Rules

Professor Steven Gensler of the University of Oklahoma College of Law has written the following update regarding what transpired at last week's meeting of the Advisory Committee on Civil Rules. Here is the update he prepared:

First, some old news. The e-discovery package is still set to go into effect on December 1, and there are no signs that Congress will act to derail those changes. The committee’s other major project recently has been the Style Project, which has already been approved by the Standing Committee and will go before the Judicial Conference later this month. If the Style Project stays on track, the re-styled rules will take effect on December 1, 2007.

Now, the new projects. Along with the other advisory committees, the Civil Rules Committee is participating in a project to develop uniform time-computation rules. One significant change under consideration is to eliminate the so-called “11-day” rule by which intermediate weekends and holidays are excluded from periods of less than 11 days. In other words, all days would count regardless of the length of the period. In that vein, the committee has been examining all of the deadlines in the civil rules to determine whether they would need to be adjusted in light of the fact that intermediate weekends and holidays would count. Rule 6 would retain the “last day” rule, which extends the deadline to the next day that is not a weekend, holiday, or day when the clerk’s office is otherwise inaccessible.

The committee also considered various proposals to amend Rule 12(e) as a vehicle for the court to obtain more detailed pleadings. The proposals were designed to preserve the concept of notice pleading but still make more detailed pleadings available to facilitate case management. The proposals were tabled, pending further study, largely out of concern that an expanded Rule 12(e) practice would be abused by defendants.

The committee is also considering changes to testifying expert practice under Rule 26(a)(2). One set of issues relates to clarifying who is required to submit an expert report. Another set of issues relates to work-product and the expert’s report. The majority view holds that an attorney forfeits work-product protection as to documents shown to a testifying expert. The committee is studying proposals that would, among other things, allow lawyers to show work-product protected materials to their experts without forfeiting the privilege, and also would exempt draft expert reports from discovery. The ABA Federal Practice Task Force has submitted a resolution and report in support of these changes, although other groups have at different times sided with the current full-disclosure rule.

Finally, but by no means least, the committee is studying possible changes to Rule 56. Principally, the committee is considering amendments that would standardize the processes of moving for and responding to summary judgment, such that summary judgment practice would be largely uniform across the federal districts. Under the current scheme, Rule 56 says little about this subject, leading to a proliferation of local rules and local practices. The committee is also considering an amendment that would specifically authorize and regulate the practice of so-called “partial summary judgments.” While litigants routinely seek – and courts routinely grant – summary judgment on fewer than all of the claims in a case, Rule 56 does not address the subject head on. The sense is that, while courts are generally getting it right, the rule should speak to the practice more clearly.

I should note that all of the “new projects” are still in the study and development phase. To the extent they proceed, there still will be a notice-and-comment period for any and all to weigh in with support or criticism.