Submitted for Public Comment
Comments Due by February 1, 1999
A Summary for Bench and Bar
(AUGUST 1998)
Request for Comment on Proposed
Amendments to the Federal Rules
of Practice and Procedure
The Judicial Conference's Advisory Committees on the Bankruptcy Rules, Civil Rules, and Evidence Rules have proposed amendments to various rules and are seeking public comment on the proposed changes.
The Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee) has not approved these proposals but submits them for public comment. The proposals have not been presented to the Judicial Conference or the Supreme Court.
The full text of the proposed rules amendments and explanatory Committee Notes are set out in the Request for Comment pamphlets, which are posted on the Internet at <www.uscourts.gov> and are available on request from the Secretary to the Rules Committee. The synopsis on the following pages highlights the major aspects of the proposed Civil and Evidence Rule amendments. (A synopsis of the proposed amendments to the Bankruptcy Rules is contained in a separate brochure.) The synopses are intended to stimulate greater public comment and participation in the rulemaking process. The synopses are largely drawn from the committees' reports, which are also set out in the Request for Comment pamphlets.
The rules committees welcome all comments, whether favorable, adverse, or otherwise. All comments from the public on these proposals will be considered individually and carefully by the respective rules committees, which consist of experienced trial and appellate lawyers, scholars, and judges.
Written comments or comments sent electronically must be received by the Secretary to the Rules Committee no later than February 1, 1999. (Comments on the Bankruptcy Rule amendments are due by January 1, 1999.) As part of a two-year pilot project, comments may be sent electronically via the Internet at <www.uscourts.gov>.
An opportunity is also provided to the public to appear at scheduled public hearings to testify regarding the proposals. Requests to appear at a public hearing must be received by the Secretary to the Rules Committee no later than 30 days prior to the scheduled date for the public hearing. Information on the Secretary's mailing address and the dates and places of the scheduled public hearings is set out at the end of this brochure.
Under the proposed schedule, the rules amendments would become effective on December 1,
2000, or later if -- following the public comment period -- they are in turn approved,
with or without revision, by the relevant advisory committee, the Standing Committee, the
Judicial Conference, and the Supreme Court, and if they are not altered by Congress.
I. Proposed Amendments to the Federal Rules of Civil Procedure:
(A) 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.
(B) 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 amendments to Rule 26(f), a court may not by local rule exempt cases
from the rule's requirements. But litigants may "confer" by telephone instead of
personally attending "meetings" to alleviate the burdens encountered by
litigants in districts that cover broad territories. The value of face-to-face meetings is
recognized, however, by authorizing local rules that require meetings in some or all
cases. The provisions governing the times for conferring and reporting are changed to
ensure that the court has an adequate opportunity to consider the report before a
scheduling conference.
(C) Rule 30(d)(2) is changed by establishing a presumptive limit of "one day of
seven hours" for a deposition. The presumptive limit can be changed by court order,
or by a stipulation of the parties joined by the deponent. Rule 30(d) is also changed to
make it clear that the limits on objections reach all objections by any person, and that
sanctions may be imposed for any improper impediment or delay.
(D) Rule 34(b) is amended to emphasize the power, now implicit in Rules 26(b)(2) and
explicit in 26(c), to allow a party to pursue a discovery request that otherwise would
violate the limits of Rule 26(b)(2) only on condition that the requesting party pay part
or all of the reasonable costs of responding.
(E) The failure to supplement discovery responses under Rule 26(e)(2) would be
sanctionable under Rule 37(c)(1).
(F) Rules 4 and 12 are amended to provide for service on the United States and 60 days
to answer in an action brought against a federal officer or employee in an individual
capacity.
(G) Admiralty Rule B is amended to reduce the need for service of admiralty and
maritime attachment by a United States marshal. Other changes in the rule conform to 1993
amendments of Civil Rule 4. State law quasi-in-rem jurisdiction would not be borrowed for
admiralty proceedings, but Rule B would expressly confirm the availability of state
security remedies through Civil Rule 64.
(H) Rule C, which governs "true" in rem proceedings, has been invoked for
civil forfeiture proceedings by a growing number of statutes. As the forfeiture practice
has grown, it has become apparent that some distinctions should be made between admiralty
and forfeiture proceedings. The proposed changes would allow a longer time to appear in a
forfeiture proceeding than in an admiralty proceeding. They also would establish some
distinctions in the procedures for asserting interests in the property brought before the
court.
(I) Rule C and Rule E are amended to reflect statutory provisions that allow a
forfeiture proceeding to be brought in a district in which the property is not located.
Other changes would be made in various parts of Rule E.
(J) Civil Rule 14 (Third-Party Practice) is amended to reflect changes in the language
of Supplemental Rule C(6).
II. Proposed Amendments to the Federal Rules of Evidence:
(A) Rule 103(a) would be amended to establish a uniform practice among the courts
regarding the finality of rulings on motions concerning the admissibility of evidence,
i.e., in limine rulings. The amendment provides that a claim of error with
respect to a definitive ruling is preserved for review when the party has otherwise
satisfied the objection or offer of proof requirements of Rule 103(a) -- a renewed
objection or offer of proof is not necessary at the time the evidence is to be offered.
The proposed amendment also codifies the principle of Luce v. United States, 469
U.S. 38 (1984), concerning the preservation of a claim of error when admission of evidence
is dependent on an event occurring at trial. It would apply in civil and criminal cases.
(B) The proposed amendments to Rule 404(a) provide that when the accused attacks the character of a victim, a corresponding character trait of the accused is admissible. But the proposed amendments clearly limit the admissibility of evidence to a corresponding trait. They would not permit a general attack on the defendant's credibility, for example, whenever the defendant attacks the character of the victim.
(C) The proposed amendments to Evidence Rule 701 are intended to prevent the practice
of proffering an expert as a lay witness and thereby end-running both the reliability
requirements of Rule 702 and the disclosure requirements pertaining to expert testimony.
Under the amendment, testimony cannot be admitted under Rule 701 if it is based on
scientific, technical, or other specialized knowledge. The language of the amendment
intentionally tracks the language defining expert testimony in Rule 702. The proposed
amendment does not prohibit lay witness testimony on matters of common knowledge that have
traditionally been the subject of lay opinions.
(D) The proposed amendment to Evidence Rule 702 is in response to the Supreme Court's
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc, and it attempts to
address the conflict in the courts about the meaning of Daubert. The proposed
amendment specifically extends the trial court's Daubert gatekeeping function to
all expert testimony, including scientific, technical, or other specialized knowledge;
requires a showing of reliable methodology and sufficient basis; and provides that the
expert's methodology must be applied properly to the facts of the case.
(E) The proposed amendment to Evidence Rule 703 would limit the disclosure to the jury
of inadmissible information that is used as the basis of an expert's opinion. Under
current law, litigants can evade an exclusionary rule of evidence by having an expert rely
on inadmissible evidence in forming an opinion. The inadmissible information is then
disclosed to the jury in the guise of the expert's basis. The proposed amendment imposes
no limit on an expert's opinion itself. The existing language of Evidence Rule 703,
permitting an expert to rely on inadmissible information if it is of the type reasonably
relied upon by experts in the field, is retained. Rather, the limitations imposed by the
proposed amendment relate to the disclosure of this inadmissible information to the jury.
Under the proposed amendment, the otherwise inadmissible information cannot be disclosed
to the jury unless its probative value in assisting the jury to weigh the expert's opinion
substantially outweighs the risk of prejudice resulting from the jury's possible misuse of
the evidence. The proposed amendment does not inhibit an opposing
parties' use of such information for purposes of cross-examination.
(F) Rules 803(6) would be amended to establish a procedure by which parties can
authenticate certain records of regularly conducted activity (e.g., business records),
other than through the testimony of foundation witnesses. The proposal is based on the
procedures governing the certification of foreign records of regularly conducted activity
in criminal cases as provided by 18 U.S.C. § 3505. The amendments are intended to
establish a similar procedure for domestic and foreign records offered in civil cases. A
conforming amendment is made to Rule 902.
Public hearings are scheduled to be held on the amendments to
Those wishing to testify should contact the Secretary at the address below in
writing at least 30 days before the hearing.
All written comments on the proposed rule amendments should be mailed to:
Peter G. McCabe, Secretary
Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States
Thurgood Marshall Federal Judiciary Building
Washington, D.C. 20544
Comments on the proposed rule amendments may also be sent electronically via
the Internet at <www.uscourts.gov >. (coming soon)
In accordance with established procedures all comments submitted
on the proposed amendments are available to public inspection.
The text of the proposed rules amendments and the accompanying Committee Notes can be
found at the U.S. Federal Courts' Home Page at <www.uscourts.gov>
on the Internet. For further information, copies of this brochure, the Request for
Comment pamphlets, and other materials, contact:
John K. Rabiej, Chief
Rules Committee Support Office
Administrative Office of U. S. Courts
Thurgood Marshall Federal Judiciary Building
Washington, D.C. 20544
(202) 273-1820