Amendments to Federal Rules of Civil Procedure

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					    Amendments to
    Federal Rules of Civil Procedure


    June 7, 2011




1
    Summary of Amendments

    • Rule 8
      – Affirmative Defenses

    • Rule 26
      – Expert Discovery

    • Rule 56
      – Summary Judgment




2
    Summary of Amendments




    • Rule 8
      – Discharge in bankruptcy is deleted as an
        affirmative defense




3
    Summary of Amendments



    • Rule 26
      – Add/clarify disclosure requirements for experts for
        whom no report is required

      – “Limit” disclosure to “facts and data”

      – Some work product protection for drafts and
        attorney-expert communications



4
    Summary of Amendments



    • Rule 56
      – Revised “to improve procedures”

      – Standard for granting summary judgment remains
        unchanged

      – May be attempting to track common/best practice
        or local rules



5
    Rule 26



    • 26(a)(2)(B)(ii)
       – Old Rule: “data or other information considered
         by the witness in forming [all opinions]”

       – Revised Rule: “facts or data considered by the
         witness in forming [all opinions]”

       – Comment to revised rule makes clear change
         intended to avoid disclosure of drafts and at least
         some attorney-expert communications

6
    Rule 26

    • 26(b)(4)(B)
       – Draft reports and disclosures are protected as
         work product
       – Applies to any testifying expert


    • 26(b)(4)(C)
       – Communications between expert and attorney are
         protected as work product
       – Applies only to experts required to provide a
         report
       – Three exceptions: compensation, facts
         considered, and assumptions

7
    Rule 26

    • 26(a)(2)(C)
       – Provides for disclosure of certain information for
         experts not subject to report requirements

          • Subject matter of evidence under 702, 703, or 705
          • Summary of facts and opinions


       – Comment suggests that disclosure need not
         include facts unrelated to expert opinions




8
    Rule 26 – Select Cases

    Dongguk Univ. v. Yale Univ., 2011 WL 1935865 (D. Conn. May 19,
    2011) (hand-written notes still discoverable).
    Sara Lee Corp. v. Kraft Foods, Inc., __ F.R.D. __, 2011 WL
    1311900 (N.D. Ill. April 1, 2011) (denying motion to compel in part
    by applying new “facts or data” language and revised rule).
    Daugherty v. Amer. Express Co., 2011 WL 1106744 (W.D. Ky.
    March 23, 2011) (applying amendments to case filed in 2008 as
    “just and practical”).
    CIVIX-DDI, LLC v. Metro. Regional Inform. Systems, Inc., __
    F.R.D. __, 2011 WL 922611 (E.D. Va. March 8, 2011) (amended
    rules apply to case filed on August 30, 2010).
    Graco v. PMC Global, Inc., 2011 WL 666056 (D. N.J. Feb. 14,
    2011) (analyzing revised rule).

9
     Rule 26 – Select Cases

     Nat’l Western Life Ins. Co. v. Western Nat’l Life Ins. Co., 2011 WL
     840976 (W.D. Tex. March 3, 2011) (limiting discovery under new
     rule).

     Crabbs v. Wal-Mart Stores, Inc., 2011 WL 499141 (S.D. Iowa Feb.
     4, 2011) (applying 26(a)(2)(C) to treating physicians).

     Estate of Allison v. Vince Scoggins, P.A., 2011 WL 650383 (W.D.
     N.C. Feb. 10, 2011) (applying revised rule and requiring a privilege
     log).




10
     Rule 56

     • 56(a)
        – “Partial” summary judgment as to “part of a claim or
          defense” now express

     • 56(c) and 56(e)
        – Reformulates old rule 56(e)(2); substantively similar,
          but more express
        – Must cite to record evidence OR show that the materials
          cited do not demonstrate the absence or presence of a
          genuine dispute
        – The Court’s discretion express to:
            • Give an opportunity to properly support or address a fact
            • Consider the fact undisputed
            • Grant summary judgment

11
     Rule 56

     • 56(g)
       – “If the court does not grant all the relief requested
         by the motion, it may enter an order stating any
         material fact – including an item of damages or
         other relief – that is not genuinely in dispute and
         treating the fact as established in the case.”

       – Similar to old rule 56(d)(1)

       – Comment is now express to use 56(g) with caution

       – 56(g) is not mandatory

12
     Rule 56 – Select Cases

     Servicios Especiales al Comercio Exterior v. Johnson Controls,
     Inc., 2011 WL 2037017 (E.D. Wis. May 24, 2011).

     Norton v. Assisted Living Concepts, Inc., __ F. Supp. 2d __, 2011
     WL 1832952 (E.D. Tex. May 13, 2011).

     Isovolta Inc. v. Protrans Int’l, Inc., __ F. Supp. 2d __, 2011 WL
     221886 (S.D. Ind. Jan. 19, 2011).




13
     Daniel J. Brown
     DORSEY & WHITNEY LLP
     50 South Sixth Street, Suite 1500
     Minneapolis, MN 55402
     brown.daniel@dorsey.com




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