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Amendments to Federal Rules of Civil Procedure

Amendments to Federal Rules of Civil Procedure . June 7, 2011. Summary of Amendments. Rule 8 Affirmative Defenses Rule 26 Expert Discovery Rule 56 Summary Judgment. Summary of Amendments. Rule 8 Discharge in bankruptcy is deleted as an affirmative defense. Summary of Amendments.

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Amendments to Federal Rules of Civil Procedure

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  1. Amendments to Federal Rules of Civil Procedure June 7, 2011

  2. Summary of Amendments • Rule 8 • Affirmative Defenses • Rule 26 • Expert Discovery • Rule 56 • Summary Judgment

  3. Summary of Amendments • Rule 8 • Discharge in bankruptcy is deleted as an affirmative defense

  4. Summary of Amendments • Rule 26 • Add/clarify disclosure requirements for experts for whom no report is required • “Limit” disclosure to “facts and data” • Some work product protection for drafts and attorney-expert communications

  5. Summary of Amendments • Rule 56 • Revised “to improve procedures” • Standard for granting summary judgment remains unchanged • May be attempting to track common/best practice or local rules

  6. Rule 26 • 26(a)(2)(B)(ii) • Old Rule: “data or other information considered by the witness in forming [all opinions]” • Revised Rule: “facts or data considered by the witness in forming [all opinions]” • Comment to revised rule makes clear change intended to avoid disclosure of drafts and at least some attorney-expert communications

  7. Rule 26 • 26(b)(4)(B) • Draft reports and disclosures are protected as work product • Applies to any testifying expert • 26(b)(4)(C) • Communications between expert and attorney are protected as work product • Applies only to experts required to provide a report • Three exceptions: compensation, facts considered, and assumptions

  8. Rule 26 • 26(a)(2)(C) • Provides for disclosure of certain information for experts not subject to report requirements • Subject matter of evidence under 702, 703, or 705 • Summary of facts and opinions • Comment suggests that disclosure need not include facts unrelated to expert opinions

  9. Rule 26 – Select Cases Dongguk Univ. v. Yale Univ., 2011 WL 1935865 (D. Conn. May 19, 2011) (hand-written notes still discoverable). Sara Lee Corp. v. Kraft Foods, Inc., __ F.R.D. __, 2011 WL 1311900 (N.D. Ill. April 1, 2011) (denying motion to compel in part by applying new “facts or data” language and revised rule). Daugherty v. Amer. Express Co., 2011 WL 1106744 (W.D. Ky. March 23, 2011) (applying amendments to case filed in 2008 as “just and practical”). CIVIX-DDI, LLC v. Metro. Regional Inform. Systems, Inc., __ F.R.D. __, 2011 WL 922611 (E.D. Va. March 8, 2011) (amended rules apply to case filed on August 30, 2010). Graco v. PMC Global, Inc., 2011 WL 666056 (D. N.J. Feb. 14, 2011) (analyzing revised rule).

  10. Rule 26 – Select Cases Nat’l Western Life Ins. Co. v. Western Nat’l Life Ins. Co., 2011 WL 840976 (W.D. Tex. March 3, 2011) (limiting discovery under new rule). Crabbs v. Wal-Mart Stores, Inc., 2011 WL 499141 (S.D. Iowa Feb. 4, 2011) (applying 26(a)(2)(C) to treating physicians). Estate of Allison v. Vince Scoggins, P.A., 2011 WL 650383 (W.D. N.C. Feb. 10, 2011) (applying revised rule and requiring a privilege log).

  11. Rule 56 • 56(a) • “Partial” summary judgment as to “part of a claim or defense” now express • 56(c) and 56(e) • Reformulates old rule 56(e)(2); substantively similar, but more express • Must cite to record evidence OR show that the materials cited do not demonstrate the absence or presence of a genuine dispute • The Court’s discretion express to: • Give an opportunity to properly support or address a fact • Consider the fact undisputed • Grant summary judgment

  12. Rule 56 • 56(g) • “If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact – including an item of damages or other relief – that is not genuinely in dispute and treating the fact as established in the case.” • Similar to old rule 56(d)(1) • Comment is now express to use 56(g) with caution • 56(g) is not mandatory

  13. Rule 56 – Select Cases Servicios Especiales al Comercio Exterior v. Johnson Controls, Inc., 2011 WL 2037017 (E.D. Wis. May 24, 2011). Norton v. Assisted Living Concepts, Inc., __ F. Supp. 2d __, 2011 WL 1832952 (E.D. Tex. May 13, 2011). Isovolta Inc. v. Protrans Int’l, Inc., __ F. Supp. 2d __, 2011 WL 221886 (S.D. Ind. Jan. 19, 2011).

  14. Daniel J. Brown DORSEY & WHITNEY LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402 brown.daniel@dorsey.com

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