U.S. Judicial Conference Circulates Proposals to Amend Civil and Evidence Rules

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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. …