Vol. 12, No. 6, Pg. 45. Amendments to the Federal Rules: The Bad Guys Win Again.

Author:By Ken Suggs

South Carolina Lawyer


Vol. 12, No. 6, Pg. 45.

Amendments to the Federal Rules: The Bad Guys Win Again

45Amendments to the Federal Rules: The Bad Guys Win AgainBy Ken SuggsOn December 1, 2000, the Federal Rules of Civil Procedure and, to a lesser extent, the Federal Rules of Evidence changed significantly. In the writer's opinion, most of the changes are unnecessary and for the worse. It seems to me that we were getting along just fine under our opt-out brand of pre-trial practice, but the new rules do not allow local opt outs. Although our Court has done its best to fashion a reasonable process under the new rules, there's nothing it can do to ameliorate the changes in substance, which are the real problem with the amendments.

True, getting medical bills and records authenticated became slightly easier with a coordinated change to Rules 803(6) and 902(11), F.R.E. Rule 803(6) is, of course, the hearsay exception for records of regularly conducted activity. Even though such records were admissible, they still, under the old rule, had to be authenticated by a witness or request to admit. Rule 902 is the general rule of self-authentication. Subsection (11) now provides that authentication may take place through "a written declaration of its custodian or other qualified person." The new rule requires written notice to the other side and a fair opportunity to inspect the records and challenge them. Our Court has dealt with the fair notice requirement by requiring service of authenticating affidavits no less than 30 days before the close of discovery. Local Rule 16.02(D)(3). While this is nominally a change for the better, it solves a problem that was only minimal at worst.

The new limit of seven hours for any one deposition in F.R.C.P.(d)(2) is also a positive change. I once sat through eight hours of questioning an expert witness on the details of his Ph.D. dissertation, without a single question about his opinions. Practitioners should note that our Court has wisely applied the seven hour limit to each witness provided as a 30(b)(6) respondent.

The rest of the changes are just going to lead to an increase in disputes the courts will have to resolve, added numbers of hearings on scientific and technical evidence and, likely, a further erosion of the ability of plaintiffs to get meritorious cases to the jury. The...

To continue reading