Advisory Committee Takes Final Action on Rule 26 and 56 Proposed Amendments

Professor Steven Gensler has shared the following report on the Civil Rules Advisory Committee Meeting that recently took place:

I thought I’d give a quick update on the Advisory Committee’s meeting from earlier this week. The Committee took final action on two proposals – Rule 26 expert discovery and Rule 56 – that I know quite a few of you have been following.

The Committee voted to approve the Rule 26 proposal substantially as published. It makes four principal changes. First, for experts that are not subject to the formal report requirement, it requires disclosures stating the subject matter on which the witness is expected to present expert evidence and a summary of the facts and opinions to which the expert is expected to testify. Second, it amends the text of Rule 26(a)(2)(B) to link the disclosures in the expert report to “the facts or data” considered by the expert instead of “the data or other information” considered by the expert. Third, it extends Rule 26(b)(3) work-product protection to draft reports. And fourth, it extends Rule 26(b)(3) work-product protection to attorney-expert communications except in three defined areas.

The bench and bar overwhelmingly supported the Rule 26 proposals. While they will limit expert discovery, the consensus was that the current system of very open expert discovery imposed substantial costs and yielded little of any use, since the lawyers and experts just found ways not to generate anything that would be subject to discovery. There was opposition by a group of very respected law professors who thought the proposal failed to properly value the need to ensure that experts are independent and not just paid mouthpieces for the attorneys who hire them. While those concerns are legitimate, the Committee believed, unanimously, that the proposal struck the right balance (recall that discovery is allowed in three areas, and of course the expert still must defend his or her opinion on the merits).

The Committee voted to approve the Rule 56 proposal but with one big change. As published, the proposal would have established a nationally-uniform procedure for making and briefing summary judgment motions. The procedure was informally referred to as “point-counterpoint,” and it was modeled after procedures currently in place in a number of districts. In written comments and at hearings, the Committee heard from many people who thought either that point-counterpoint was a bad procedure or that, good or bad, there was no need to impose it nationally. Ultimately, the Committee concluded that it lacked a sufficient basis for mandating point-counterpoint in light of the continuing debate over whether it was or was not “best practice” and the fact that (unlike, for example, the summary judgment standard), there is need for a nationally-uniform summary judgment processing rule.

The Committee also voted to reinstate the word “shall” into Rule 56. During the Style Project, “shall” was translated to “should” under the generally-applicable style conventions. The Committee note to the 2007 amendment that made this change reinforced that, while should reflected a reservoir of discretion, there would be few occasions not to grant SJ when the standard had been met. The Rule 56 proposal as published continued to use should. We received many, many comments saying that the proper translation of shall is must, and asking us to make that change now. The Committee voted to revert to shall on the basis that neither should nor must truly capture the subtleties that have developed in this area.

As for the Rule 56 proposal generally, the purpose from the beginning was to bring the rule up to date without changing the standard for when summary judgment was available. Anyone who has read the text of Rule 56 recently knows that the text of the rule bears little relation to practice. Some of the updating included (1) creating text-based authority for partial summary judgments; (2) clarifying what the court may do when a party fails to respond to (or properly respond to) a summary judgment motion; and (3) clarifying the court’s power to grant summary judgment for a nonmovant, on grounds not raised, or sua sponte. And overall, Rule 56 was reorganized to flow more logically.

With these votes, the Rule 26 and Rule 56 proposals now go to the Standing Committee for their consideration. From there, they would go to the Judicial Conference, the Supreme Court, and Congress respectively. By my math, if the proposals continue to receive approval and proceed along that path, then these proposals would take effect on December 1, 2010.