A Peek at 2010 FRCP Amendments
FRCP, the Story So Far
Established in 1938, the FRCP rules are amended based upon the proposal of the advisory committee that meets annually to suggest changes. The proposed amendments are then submitted to congress for adoption. The FRCP rules were thusly amended in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, 2000, and 2006. It was in 2006 that practical changes were made to e discovery laws to facilitate easy management of electronically stored information for both courts and litigators alike. In fact, it was in 2006 the term ‘electronically stored information’ was introduced. Since the language of the FRCP rules was difficult to understand, these laws were rewritten in 2007 to make them more comprehensible.
2010 Discovery Amendments
In 2010, amendments were made to eDiscovery laws to make the process of eDiscovery as effortless and inexpensive as possible. Rules that were ambiguous were amended to make it clearer to all so that there is no scope for misreading and misinterpretation; while rules that were of no significance were abrogated or repealed. Of the amendments made to the FRCP, the most significant are the changes made to rules 8c, 26, and 56. Let’s look at these amendments:
Amendment to Rule 8(c)
Earlier, “discharge in bankruptcy” was included in the list of affirmative defenses that were to be asserted in a responsive pleading. The reference to bankruptcy has now been deleted.
Amendment to Rule 26
Rule 26 is related to the disclosures of expert witnesses. Per this rule, all kinds of communication between testifying experts and counsel, including draft reports, e-mails, meeting notes and discussions, is discoverable. However, it was found that the fear of discovery has resulted in:
· Testifying experts holding back information from counsel. This lack of open communication between experts and counsel affects the quality of the expert’s opinion.
· Counsels hiring two experts – a consulting expert and a testifying expert. By hiring a consulting expert, the counsel gets help in developing a theory of the case without fear of discovery, while the drafting of the expert report and testifying would be done by the testifying expert. Such a move led to unnecessary expenses.
· Counsel spending time trying to find out about details regarding the development of the opposing party’s expert opinion during deposition. However, this extensive questioning led to nothing but unnecessary wastes of time and money.
Hence, amendments were made not only to promote open dialogue between testifying experts and counsel but also to reduce electronic evidence discovery costs. Now, according to the new rule, work product protection is extended to the draft reports of testifying experts. This means that not all communication, but only the facts or data that were considered for forming an opinion, need to be disclosed. However, three types of communication between testifying experts and counsel were exempted, and they are:
· Compensation received by the testifying expert for his opinion as well as testimony
· The facts or data (provided by the counsel) that were considered by the expert in forming an opinion
· The assumptions (provided by the counsel) that were considered by the expert in forming opinions
Thus, in spite of the amendments, opposing counsel still has the means to find out whether the counsel has any hand in the development of the expert’s opinion.
Amendment to Rule 56
Rule 56 relates to summary judgment. Though the amendment hasn’t changed the law, it has brought changes to the procedure for filing and resolving motions.
Every litigator wants the eDiscovery search to be less cumbersome, less expensive, and more effective. Therefore, their expectations go sky high when amendments are made. Though it is difficult to say how successful these amendments have been in realizing their hopes and desires, it can be said that with the new amendments to the FRCP, the electronic discovery process has become more manageable and affordable.
Processing your request, Please wait....
