South Carolina Lawyer
Vol. 12, No. 6, Pg. 40.
Selective Changes in the Federal Rules
40SELECTIVE CHANGES IN THE FEDERAL RULESBy Robert W. Dibble Jr.THE FEDERAL RULES OF CIVIL PROCEDURE
Once again the U.S. Supreme Court has revised the Federal Rules of Civil Procedure. These changes will have a much greater impact on the practice of law in South Carolina than earlier revisions because the Supreme Court severely limited the ability of each district to opt out of the Federal Rules. This was done to promote uniformity among the various districts. For example, when Rule 26 was last revised to require significant disclosures early in a proceeding, districts did not have to apply the Rule. South Carolina chose this course, and the Rule 26 initial disclosures were not required. Instead, the Court chose to require parties to respond to certain interrogatories for the purpose of assigning cases and making modified initial disclosures.
The present revisions do not allow the district to ignore Rule 26. Therefore, the Rule 26 disclosures must now be made. This required implementation of those disclosure requirements will materially change the course of cases filed in this district after December 1, 2000. Chief Judge Anderson has issued an Order making the Rule changes applicable only to cases filed after December 1, 2000. This leaves several hundred pending cases to be concluded under the old Rules and the old Local Civil Rules. Any judge can override this Order in a particular case sua sponte or on appropriate motion.
Now that the Rule 26 disclosures must be made, the Local Civil Rules requiring the parties to answer court interrogatories have been substantially revised. Those interrogatories were initially designed to require the disclosure of some information early in the proceeding although not to the extent required by Rule 26. Those interrogatories were also designed to elicit information required by the clerk in assigning cases among the district court judges. Those interrogatories have been changed to avoid duplicative disclosures. Their main function now is to aid the court in assigning cases. See, Local Civil Rule 26.01.
42Rule 26(a)(1) sets out the disclosures that must be made by each party. These disclosures must be made even though no discovery requests have been served. These disclosures include (1) the name, address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, (2) a copy of or a description by category and location of all documents, etc., that the disclosing party may use to support the claims or defenses, (3) a computation of any category of damages claimed by the disclosing party, and (4) a copy of any insurance agreement that may be available to satisfy part or all of a judgment that may be entered in an action or to indemnify or reimburse for payments made to satisfy the judgment.
This latter category appears to include contractual indemnification agreements as well as insurance policies. Certain classes of proceedings are exempted from these disclosure requirements in Rule 26(a)(1)(e). The timetable for these disclosures are governed by the Order entered after a Rule 26(f) conference with the judge. The timetable can differ substantially from case to case.
Rule 26(a)(2) requires disclosures relating to expert testimony. This Rule should be noted carefully. It now applies in South Carolina because this district cannot opt out...