Amendments to the Federal Rules of Civil Procedure and Federal Rules of Evidence

• Publication year: 2001
• Pages: 35
• Citation: Vol. 30 No. 1 Pg. 35

30 Colo.Law. 1 Colorado Lawyer 2001.

2001, January, Pg. 35. Amendments to the Federal Rules of Civil Procedure and Federal Rules of Evidence

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35

Vol. 30, No. 1, Pg. 1

The Colorado Lawyer
January 2001
Vol. 30, No. 1 [Page 35] Specialty Law Columns
The Civil Litigator
Amendments to the Federal Rules of Civil Procedure and Federal Rules of Evidence
by Philip L. Gordon

The December 2000 amendments to the Federal Rules of Civil Procedure ("F.R.C.P.") and the Federal Rules of Evidence ("F.R.E.") will have a significant impact on pre-trial procedure and trial practice in almost every federal civil case. The principal effects of the amendments to the Federal Rules of Civil Procedure will be to narrow the presumptive scope of, and to increase judicial involvement in, pre-trial discovery. The amendments to the Federal Rules of Evidence conform the rules governing expert testimony to recent developments in case law. These amendments also simplify both the admission of evidence under the business records exception to the hearsay rule and the preservation of claimed error in evidentiary rulings for appellate review

Applicability and Scope Of Amendments

All of the amendments discussed below apply in every case filed on or after December 1, 2000. The amendments also apply in cases filed before that date "insofar as just and practicable."1 Whether the latter standard will call for the retroactive application of an amended rule will depend on a variety of factors, including the specific rule in question, the fairness of retroactive application, and the burdens of retroactive application.2

Some of the amendments to the Federal Rules of Civil Procedure replace previously permitted variations in local practice with uniform national standards. For example, under former Rule 26(a)(1), each judicial district was permitted to identify categories of cases, if any, not subject to mandatory disclosure requirements. By contrast, amended Rule 26(a)(1) eliminates these local variations by specifying the categories of cases excluded from the mandatory disclosure requirement.3

To the extent that the new national standards are consistent with the local rules already in place in the U.S. District Court for the District of Colorado, they will not change local practice and, therefore, with one exception, are not discussed in this article. Practitioners with cases pending in other judicial districts should review the amended rules to determine whether any of the new national standards change the local rules previously governing their cases

Amendments to F.R.C.P

Amended Rule 26(b)(1): Pre-Trial Discovery

Amended F.R.C.P. 26(b)(1) narrows the presumptive scope of discovery from any non-privileged matter "relevant to the subject matter" of the action to any non-privileged matter "relevant to the claim or defense of any party." The definition of the term "relevant" for purposes of pre-trial discovery remains the same; that is, whether the requested information is "reasonably calculated to lead to the discovery of admissible evidence."4

The precise distinction between the old and new standards will need to await judicial explication. The Advisory Committee Notes themselves acknowledge that the line between the two standards "cannot be defined with precision" and "depends upon the circumstances of the given action."5 Highlighting the difficulty of establishing a bright-line distinction, the Advisory Committee Notes provide the following examples of categories of information that may be presumptively discoverable in some cases, but not in others: (1) other incidents involving a defendant similar to those forming the basis of a claim, (2) impeachment evidence, and (3) information about corporate organization or filing systems.6

Notably, the amendment to Rule 26(b)(1) narrows only the presumptive scope of discovery. Under the amended rule, the court may, "for good cause shown," permit discovery under the broader "relevant to the subject matter" standard.7 The court's exercise of its discretion will be of particular importance when a litigant seeks discovery for purposes of developing new claims or defenses. According to the Advisory Committee Notes, the amended rule would preclude such discovery absent leave of court.8

Amended Rule 26(a)(1): Scope Of Disclosure Obligation

Amended F.R.C.P. 26(a)(1) changes the scope of the mandatory disclosure requirement. Under the former standard, each party was required to disclose any person likely to have, and any document likely to contain, non-privileged information "relevant to disputed facts alleged with particularity in the pleadings." This standard required the disclosure of a witness or document that might be helpful to a party's adversary, even if the disclosing party did not intend to use the witness or document to support the party's own case. The new standard eliminates the obligation to help the adversary litigate its case.

The touchstone for mandatory disclosure under amended Rule 26(a)(1) is the litigant's own intended use of a witness or document, regardless of the allegations of the pleadings. Thus, the amended rule requires mandatory disclosure only of those individuals likely to have, and those documents likely to contain, non-privileged information "that the disclosing party may use to support its claims or defenses, unless solely for impeachment."9 (Emphasis added.)

The Advisory Committee Notes define "use" to include "any use at a pretrial conference, to support a motion or at trial," as well as "use of a document to question a witness during a deposition."10 This definition does not mean that the amended rule permits a party to refrain from disclosing information until the party actually uses the information. The amended rule incorporates the phrase "may use" to reflect that the disclosure obligation extends to those witnesses and documents that the disclosing party will use "if the need arises."11 Although the new rule, on its face, limits the disclosure requirement to witnesses and documents a party may use "to support its claims or defenses," the Advisory Committee Notes explain that this language also is intended to encompass witnesses and documents a party may use to support the denial of a claim or the rebuttal to a defense.12

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