Summary judgment, expert witness rules may change

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The Judicial Conference of the United States approved two major amendments to the Federal Rules of Civil Procedure last month.

If adopted by the U.S. Supreme Court, an amendment to Rule 26 would greatly expand the scope of the work product privilege regarding communications between attorneys and expert witnesses; and an amendment to Rule 56 would restore language that existed from 1938 to 2007 — if there is no genuine dispute as to any material fact, a district court “shall” grant summary judgment, rather than “should.”

Expert Witnesses

As recommended, Rule 26 would include the following provisions

Rule 26(b)(4)(B):

Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which of the draft is recorded.”

Rule 26(b)(4)(C):

Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.

The Committee justified the amendment as “profoundly practical” and “rest[ing] not on high theory but on the realities of actual experience with present discovery practices.”

The Committee explained that the extension of work-production protection to attorney-expert communications and drafts, “begins with the shared experience that attempted discovery on these subjects almost never reveals useful information about the development of the expert’s opinions. Draft reports somehow do not exist. Communications with the attorney are conducted in ways that do not yield discoverable events.”

The Committee added, “The losses incurred by present discovery practices are not limited to the waste of futile inquiry. The fear of discovery inhibits robust communications between attorney and expert trial witness, jeopardizing the quality of the expert’s opinion.”

Furthermore, wealthier parties are able to engage in such communications by hiring two sets of experts — one set to testify, and one to consult but not testify.

The Chair of the Civil Rules Committee, Hon. Mark R. Kravitz (D. Conn.), said in an interview that parties have been engaging in artificial activity to avoid the creation of recorded communications, and that lots of time is wasted at depositions exploring the content of attorney-expert communications.

“The reality is that a lot of time and effort is spent to discover things that have nothing to do with the merits of the case, but instead have to do with the lawyer’s role,” Kravitz said. “Both plaintiffs and defense attorneys wanted us to save them from themselves.”

Under the current rule, Kravitz said, attorneys are afraid to ask experts their opinion of a case, for fear that if the expert says the case is weak, that statement would later have to be disclosed at a deposition.

Summary Judgment

If the recommendations are adopted, Rule 56(a) will provide:

“Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.”

Currently, Rule 56(c) provides that summary judgment “should” be granted if there is no genuine dispute.

Judge Kravitz explained that “shall” had always been in the rule, but was changed in 2007 as part of the “Style Project.” It had been found that “shall” was ambiguous, and accordingly, it was replaced throughout the rules with either “must.” “should” or “may.”

But Kravitz said that judges and attorneys were sharply divided on whether “shall” means “must” or “should” in Rule 56.

He noted that District Court Judge David Hamilton (S.D. Ind.)(recently nominated to the Seventh Circuit), was adamant that “shall” must be read as “should,” while Seventh Circuit Judge Frank H. Easterbrook was just as adamant that “it must be ‘must.’”

“We decided to be agnostic, and not pick sides,” Kravitz said. “So, we decided to reinsert ‘shall,’ and let the Supreme Court decide whether it means ‘must’ or ‘should.’”

The Committee’s report stated, “Either substitute for ‘shall’ will redirect the summary-judgment standard from the course that has developed under ‘shall.’ … The flood of comments, and the case law they invoke, demonstrate that ‘shall’ had become too sacred to be sacrificed.”

The report will now go to the Supreme Court, which will consider whether to adopt the recommendations.

Typically, Kravitz said, they act by May of the next year. From there, it goes to Congress. If the Supreme Court adopts the changes, and Congress takes no action by Dec. 1, 2010, the recommendations will become law.