Proposed Federal Civil Rule Changes: Rules 26 (experts) and 56 (summary judgment)

The Federal Civil Rules Advisory Committee has issued a report and has begun conducting hearings concerning two proposed rule changes related to the ever-important Rule 26 regarding the disclosure of experts and related testimony and Rule 56 regarding briefing motions for and oppositions to summary judgment.  The Civil Rules Advisory Committee report can be found here.

Some highlights in the proposed changes include:

Rule 26:

The work-product protection is extended to an expert’s draft reports and to attorney communications with the expert except as to 1) expert compensation, 2) facts or data provided by the attorney that the expert considered in forming his or her opinions, and 3) any assumptions provided by the attorney on which the expert has relied.  Experts would be required to disclose all “facts and data” considered by the witness in forming his or her opinion and not all “data or other information”.

Disclosure of expert witnesses who are not required to file an expert report (such as treating physicians who may provide both fact and expert testimony) would include the subject matter of the witness’ expected expert testimony and a “summary of the facts and opinions to which the expert is expected to testify.”  Apparently some courts have taken to requiring the extensive expert reports from all witnesses from whom the court might be expected to hear expert opinion at trial.

Rule 56:

It is proposed that a memorandum opposing summary judgment under Rule 56(c) set forth all of the disputed facts found in the movant’s memorandum—which appears to be an adoption by the federal courts of the same procedure found in the Utah Rule of Civil Procedure Rule 7(c)(3)(B).  I.e., nothing new here.

The remaining changes appear to be stylistic or attempts to reconcile the various federal rules for consistency.  Note, however, that the committee took nearly two pages of its commentary to address the dispute raised in the 2007 Amendments to Rule 56(a)’s change to whether a court “shall” or “should” grant summary judgment in the absence of genuine issues of material fact and entitlement as a matter of law.  Others have also voiced their opinion on the 2007 Amendment.

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