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• Position: Amendments to civil and evidence procedural rules

Rules Amendments Approved by U.S. Judicial Conference

The U.S. Judicial Conference has approved several amendments to the Federal Rules of Civil Procedure, the most notable being amendments to Rules 26 and 30, and to the Federal Rules of Evidence, the most notable being to Rules 701, 702 and 703 relating to expert witnesses.

The changes were approved at the biannual meeting of the conference on September 15 and were sent to the chief justice of the U.S. Supreme Court in October by Third Circuit Judge Anthony J. Scirica, who is chair of the conference's Standing Committee on Rules of Practice and Procedure. Under the Rules Enabling Act, if the Court promulgates the rules and transmits them to Congress by May 1, 2000, they will take effect on December 1, 2000, unless Congress defers, amends of voids them.

The civil rules amendments, which came from the conference's Advisory Committee on Civil Rules, chaired by Fourth Circuit Judge Paul V. Niemeyer, were released for public comment in August 1998, as a result discovery project that began in 1996 under the aegis of a subcommittee. Judge Niemeyer reported that the discovery rules engendered more than 300 written comments and produced more than 70 witnesses at three hearings held by the committee in December 1998 and January 1999.

During the discovery project's study, Judge Niemeyer reported, the committee learned that in almost 40 percent of federal cases, discovery is not used and that in an additional substantial percentage of cases, only about three hours of discovery occurs. "In short," he wrote, "the discovery rules are relevant to only a limited portion of cases in which discovery is actively employed by the parties. In these cases, however, discovery was often thought to be too expensive, and concerns about undue expense were expressed by both plaintiffs' and defendants' attorneys." Discovery represents about half the cost of litigation in all cases, he added, and as much as 90 percent in the cases in which it is actively employed.

The revisions proposed for the Evidence Rules came from the Advisory Committee on Evidence Rules, chaired by Fern M. Smith, a judge of the U.S. District Court for the Northern District of California and now director of the Federal Judicial Center.

Following are some selected rules changes.

Proposed Civil Rules changes

Rule 26(a)(1). Disclosure. It is proposed that this rule, which governs the duty to make prediscovery disclosures, be amended in several...