Academic journal article Defense Counsel Journal

President's Page: Pending Discovery and Expert Evidence Revisions

Academic journal article Defense Counsel Journal

President's Page: Pending Discovery and Expert Evidence Revisions

Article excerpt

IN AUGUST, the U.S. Judicial Conference Committee on the Federal Rules of Practice and Procedure circulated for public comment, several proposed amendments. Two areas of particular importance to the civil defense bar are Rule 26 concerning discovery and Rules 701, 702 and 703, which involve expert evidence.

Necessity of discovery reform

As noted in the commentary that accompanies the proposed amendments, recent attempts at discovery reform have been largely unsuccessful. The Civil Justice Reform Act of 1991 and the mandatory disclosure rules enacted in 1993 have not reduced the cost of discovery nor the disputes that arise over the scope and appropriateness of information sought by litigants. It remains all-too-frequent a tactic for some attorneys to use the discovery process to harass an opponent or attempt to gain advantage with the judge by frequent motions portraying the opposition as stonewalling.

Although sequenced core discovery might be preferable, the proposed changes should be adopted. They narrow the scope of discovery by early isolation of issues and encourage greater judicial supervision of the discovery process. Overview of FRCP 26 revisions

Many lawyers experience difficulty coping with divergent disclosure requirements or other local practices as they handle cases in different districts. The amendments remove the ability of district courts to alter or opt out of the national disclosure requirements. This uniformity will lessen the burden on lawyers and parties to vary disclosure practices depending upon local rule.

Early definition of issues is a way to reduce discovery disputes. Under the amendments, discovery relevant to the "claim or defense" of a party replaces discovery relevant to "the subject matter." This should allow judges and lawyers to more easily define the discovery obligations and avoid the all too frequent "fishing expeditions." Information not admissible into evidence would be discoverable only if relevant and reasonably calculated to lead to the discovery of admissible evidence.

The proposal should strike an appropriate balance between lawyer-controlled discovery and court-controlled discovery. The judge is given the power to broaden discovery to "any information relevant to the subject matter involved in the action" when "good cause" is shown. This will encourage judicial supervision of problem cases. …

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