U.S. Judicial Conference circulates proposals to amend civil and evidence rules.

Public comment period opens for proposed amendments that deal with discovery reform and nail down the meaning of the Daubert decision

THE U.S. Judicial Conference in August circulated proposed amendments to Federal Rules of Civil Procedure and the Federal Rules of Evidence for public and professional comment. Public hearings will be held:

* Civil Rules in Baltimore on December 7, 1998; in San Francisco on January 22, 1999; and in Chicago on January 29, 1999.

* Evidence Rules in Washington, D.C., on October 22, 1998; in Dallas on December 4, 1998; and in San Francisco on January 25, 1999.

The proposed amendments were developed by the respective advisory committees of the Judicial Conference and have not been approved as yet by the Judicial Conference Standing Committee on Rules of Practice and Procedure.

Defense Input

The proposed amendments to the Civil Rules, particularly with respect to discovery reform, were developed with significant input from the U.S. defense community through the International Association of Defense Counsel, the Defense Research Institute, the Federation of Insurance and Corporate Counsel, and Lawyers for Civil Justice. LCJ is a national coalition of defense trial lawyer organizations and corporations devoted to civil justice reform.

Circulation of the proposals follows a lengthy review process by the Judicial Conference and efforts by LCJ and other defense organizations to provide meaningful input. This included recommendations submitted by 1997-98 LCJ President Stephen G. Morrison on behalf of a special DRI "working group," supporting many of the changes to the discovery process now in the proposed amendments. The major objectives supported by these recommendations were to achieve uniformity in discovery rules in federal court, limit the scope of discovery, and achieve more focused discovery based on claims and defenses rather than subject matter.

LCJ announced in August that since the proposed amendments "reflect significant progress towards these objectives, LCJ is strongly encouraging its members to support these proposed revisions through testimony and written comment."

Comments and Testimony

To be amended are Civil Rules 4, 5, 12, 14, 26, 30, 34 and 37, and Admiralty Rules B, C. Also to be amended are Evidence Rules 103, 404, 701, 702, 703, 803 and 902.

Comments and requests to testify at the public hearings should be directed to Secretary of Committee on Rules of Practice and Procedure, Administrative Office of U.S. Courts, Washington, D.C. 20544. Requests to testify must be received 30 days before a hearing date. Requests may be submitted electronically to www.uscourts. gov. The texts of the amendments also are available from above address or URL.

Under the Judicial Conference's proposed schedule, the rules amendments would become effective on December 1, 2000, or later if--following the public comment period--they are approved, with or without revision, by the relevant advisory committee, the standing committee, the conference itself, and the Supreme Court, and if they are not altered by Congress.

Following are the Judicial Conference summaries of the proposed amendments to the Rules of Civil Procedure and Federal Rules of Evidence.

Judicial Conference Summary of Civil Rules Changes

* Rule 5(d) is amended to provide that disclosures under Rule 26(a)(1) and (2), and discovery requests and responses, must not be filed until the discovery materials are used in the proceeding or the court otherwise orders.

* Several parts of Rule 26 are amended. The authorization in Rule 26(a)(1) for local rules that opt out of the initial disclosure requirement is eliminated. At the same time the scope of the disclosure obligation is substantially reduced, and requires disclosure only of the identity of witnesses and documents that support the disclosing party's position. Supporting information need not be disclosed, moreover, if it is aimed solely at impeachment. The rule exempts from disclosure eight categories of proceedings that do not usually benefit from disclosure. In addition, a party who believes that disclosure is not appropriate in the circumstances of a particular action can secure a judicial determination by stating the objection in the Rule 26(f) report. Explicit provision is also made for disclosure by late-added parties. The present Rule 26(a)(4) provision for filing all disclosures is moved to Rule 26(a)(3) and limited to pretrial disclosures under (a)(3), consistent with the proposed Rule 5(d) amendments. The time for making initial disclosures is changed in conjunction with Rule 26(f) timing changes.

The scope of discovery defined by Rule 26(b)(1) is retained, but divided to distinguish between attorney-managed and court-managed discovery. Attorney-managed discovery is limited to matters relevant to the "claims or defenses" of the parties. Discovery that reaches beyond the claims or defenses of the parties, embracing the "subject matter involved in the action," remains available, but only on court order for good cause. The last sentence of the current rule is changed to provide that inadmissible information is discoverable only if it is relevant and the discovery is reasonably calculated to lead to admissible evidence. Finally, a new sentence is added as a reminder of the important limitations imposed by subdivision (b)(2).

Rule 26(b)(2) is changed to eliminate a court's discretion to alter by local rule the presumptive national limits on the number of discovery requests or duration of a deposition.

The discovery moratorium contained in Rule 26(d) is amended to preclude exemption by local rule and to allow the parties to proceed immediately with discovery in cases categorically excluded from initial disclosure requirements by proposed Rule 26(a)(1)(E).

Under the proposed...