Amendments to the federal discovery and evidence rules.

A Primer

Two main themes, sometimes at odds with each other, have driven discovery amendments to the Federal Rules of Civil Procedure during the past decade: 1) Discovery is largely extra-judicial and should occur with a minimum of judicial involvement to minimize delay and expense to the parties; and 2) more detailed rulemaking in setting the parameters of proper discovery conduct is necessary to achieving the goal of extra-judicial discovery. This year's amendments to the federal discovery rules continue the sea change first engineered with the 1993 amendments. This article outlines the most substantive of the amendments to the federal discovery rules which take effect on December 1,2000, and "shall govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending."(1) More technical amendments to the discovery rules and amendments to the civil rules which do not affect discovery (Rules 4, 5, 12, and 14) are beyond the scope of this article.(2) In addition, amendments to the Federal Rules of Evidence governing experts and motions in limine are addressed briefly.

Amendments to the Federal Rules of Civil Procedure

* Types of Required Disclosures

Perhaps the most controversial amendment in 1993 concerned categories of discovery which were subject to required disclosure at the early stage of the case--termed "initial disclosures" under Rule 26(a)(1). Because there was a great deal of debate about certain categories of disclosure, the 1993 amendment permitted federal district courts to "opt out," by local rule or order, of certain categories of disclosure.(3)

In Florida, the district courts in the Middle and Southern districts have been "opt-out" courts.(4) The Northern District of Florida has exempted 10 categories of cases from the mandatory disclosure provisions regarding witnesses and documents.(5)

In 1997 and 1998, several studies and conferences were conducted to assess the impact of the 1993 amendments to the federal discovery rules and to address the need for further amendments.

Among other things, the studies showed that: 1) discovery is not used in about 40 percent of the cases and in another large number of cases only about three hours of attorney time is devoted to discovery; 2) discovery which is extensive can consume up to 90 percent of the total litigation costs and attorneys in these cases support national uniformity in the rules and early judicial intervention in discovery disputes.(6)

After reviewing this data, the Civil Rules Advisory Committee reached a consensus that the local "opt-out" provision should be discarded in favor of a uniform approach to mandatory disclosures applicable to all federal district courts.(7)

At the same time, rule drafters concluded that changes were needed concerning the type of information subject to required disclosure.

Rule 26(a)(1) will now require parties in most civil cases,(8) without a prior request, to provide initial disclosures identifying: 1) each individual; and 2) each document, data compilation, and tangible thing that the "disclosing party may use to support its claims and defenses, unless solely for impeachment...."(9) Unless the type of case is itself exempt from disclosure, a party's duty to disclose this information is mandatory except "to the extent otherwise stipulated or directed by order...."(10) However, if parties to a case wish to stipulate to bypass the initial disclosures, this type of agreement could be subject to the approval of the court.(11)

By limiting mandatory disclosures solely to information which will be used to support the disclosing parties' claims or defenses, the amended rule avoids the possibility that the disclosing party will have to provide the other side with information which it does not intend to use and could reveal privileged or work product information.(12) This change is in response to criticisms of the broader language for witnesses and documents enacted in the 1993 version of the initial disclosure requirements.(13) Notwithstanding these criticisms, a study conducted by the Federal Judicial Center pointed out that attorneys who practiced some form of mandatory disclosure "are highly satisfied with it."(14)

Rule 26 retains the former requirement that information regarding a party's insurance, as well as damages information, is subject to mandatory initial disclosure.(15)

The initial disclosures must be provided either at the discovery conference/case management meeting mandated by Rule 26(f) or within 14 days of it.(16)

* Case Management Meeting

An integral part of the 1993 amendments required the parties to meet and develop a proposed discovery plan to submit to the court prior to commencing formal discovery.(17) However, the 1993 version allowed the court to opt out of this requirement by local rule. As of December 1, the local rule opt-out is no longer possible, but the parties are instructed to "confer" rather than to "meet." This change in terminology is to emphasize that a face-to-face meeting is not required. However, the "court may order that the parties or attorneys attend the conference in person."(18)

* Scope of Discovery

Another significant amendment concerns the scope of discovery. For years, the scope of discovery under Rule 26 has included all information, not privileged, which is "relevant to the subject matter involved in the pending action." Effective December 1, 2000, a party may discover only unprivileged information which is "relevant to the claim or defense of any party."(19) However, the court may, "for good cause" shown, broaden discovery in a given situation to the subject matter of the action.(20)

Committee members felt that narrowing the scope of discovery was necessary to prevent discovery from being used "to develop new claims or defenses that are not already identified in the pleadings" while recognizing that "the dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision."(21)

* Depositions

Continuing the trend toward greater judicial involvement in regulating the conduct of discovery, Rule 30 now contains a provision regarding the length of depositions. "Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours."(22) However, this time limit may be extended "if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination."(23)

* Sanctions

Rule 37 provides the court with a range of sanctions for violating discovery rules or orders ranging from attorneys' fees and expenses or exclusion of evidence to striking pleadings.(24) The 1993 amendments added a provision that a party who, without substantial justification, fails to make the required initial or expert witness disclosures could not thereafter use the evidence unless the failure was harmless.(25) The current amendment extends the exclusion sanction to a failure to amend a prior response to discovery as required by Rule 26(e)(2).(26)

* Amendments to the Federal Rules of Evidence

The Advisory Committee on the Federal Rules of Evidence recommended amendments to Rules 103, 404(a), 701, 702, 703, 803(6), and 902 of the Federal Rules of Evidence.(27) Only the rules addressing motions in limine and experts are discussed below.

* Motions in Limine

Courts are frequently asked to provide rulings in advance of when evidence is to be offered by means of a motion in limine filed by a party seeking to introduce or exclude certain evidence. Once the court has ruled, is a renewed objection or offer of proof necessary to preserve the issue for appeal? The amendment to Rule 103(a)(2) resolves differences among some federal courts on this issue.(28) It now provides: "Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal."(29) The key phrase here is "definitive ruling" and the advisory committee note to the amendment indicates that counsel has an obligation "to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point."(30)

Experts

This year there were no amendments to the federal civil rules concerning expert witness disclosures. However, the Federal Rules of Evidence have been amended in response to two recent Supreme Court decisions, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which emphasize the trial court's "gate-keeping" role in determining whether to admit expert testimony.(31) The amendments also clarify circumstances in which otherwise inadmissible facts or data relied upon by experts may be disclosed to the jury.(32)

Rule 702, governing testimony by experts, has been expanded to permit such testimony by witnesses qualified by knowledge, skill, experience, training, or education, "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."(33)

Rule 701 permits opinion testimony by lay witnesses not testifying as experts as long as the opinions and inferences are "rationally based on the perception of the witness" and "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."(34) A third requirement is added with the amended rule: The testimony of a lay witness may not be "based on scientific, technical, or other specialized knowledge within the scope of Rule 702."(35) This is to "eliminate the risk that the reliability requirement set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing."(36)

Rule 703 formerly provided that facts or data need not be admissible in evidence if of a type reasonably relied upon by experts in the particular field in which the expert testimony is offered.(37) Both state and federal courts, at the trial and appellate levels, struggled with application of this rule.(38) Rule 703 has been amended to clarify the extent to which underlying facts or data relied upon by the expert may be admitted into evidence.(39) It now provides that the underlying facts or data need not be admissible "in order for the opinion or inference to be admitted."(40) However, "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."(41)

Does this balancing test sound familiar? Rule 403, Federal Rules of Evidence, allows the exclusion of relevant evidence if its probative value is substantially outweighed by other factors such as the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.(42) Rule 703, however, requires the proponent of the evidence to show that the probative value of this information in assisting the jury in evaluating the facts or data upon which the expert relies substantially outweighs any prejudicial effect.(43)

Conclusion

Only time will tell whether the narrowing of the scope of discovery will have a real effect on federal discovery practice. In the meantime, Florida attorneys who have been practicing in a state where two of the three district courts "opted out" of mandatory disclosures of witnesses and documentary and other information will enter new territory under the amended Federal Rules of Civil Procedure. Presentation of expert testimony after December 1, 2000, will also be affected by the amendments to the Federal Rules of Evidence. Close attention to the amended rules, and the commentary accompanying them, will assist the traveler.

(1) Orders of the Supreme Court of the United States Adopting and Amending Rules, Order of April 17, 2000, 140 F.R.D. 340, 341 (2000). The statutory scheme for enacting court rules directs the Chief Justice of the United States to transmit to Congress no later than May 1 any proposed rule(s) which will take effect no earlier than December 1 of the year in which the proposed rule(s) is submitted "unless otherwise provided by law." 28 U.S.C. [sections] 2074. The initial responsibility for promulgating proposed amendments to the federal rules lies with committees appointed by the Judicial Conference of the United States, the governing arm of the federal courts. 28 U.S.C. [sections] 2073. These committees consist of "members of the bench and the professional bar, and trial and appellate judges." Id.

(2) This article reflects only the views of the author, not the court in which she sits or any other court.

(3) Rule 26(a)(1) formerly provided that "Except to the extent otherwise stipulated or directed by order or local rule, a party shall, without awaiting a discovery request, provide to other parties: ..." Fed. R. Civ. P. 26(a)(1) (1994) (amended 2000).

(4) See Local Rule 3.05(d), M.D. Fla.; Local Rule 26.1, S.D. Fla.

(5) See Local Rule 26.1, N.D. Fla.

(6) Interview with Judge Paul V. Niemeyer, current chair of the Judicial Conference Advisory Committee on the Federal Rules of Civil Procedure, THE THIRD BRANCH (May 1999), reprinted at http://www.uscourts.gov/ttb/may99ttb/ interview.html.

(7) Under the 1993 rules, about two-thirds of the courts required some form of initial disclosure. The committee concluded that "the mandatory initial disclosure provisions did not generate the flood of satellite litigation that many had feared" and "the judges and lawyers who are using the mandatory initial disclosure are quite satisfied with it." Id.

(8) The following categories of proceedings are exempt from initial disclosure: 1) an action for review on an administrative record; 2) a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence; 3) an action brought without counsel by a person in custody of the United States, a state, or a state subdivision; 4) an action to enforce or quash an administrative summons or subpoena; 5) an action by the United States to recover benefit payments; 6) an action by the United States to collect on a student loan guaranteed by the United States; 7) a proceeding ancillary to proceedings in other courts; and 8) an action to enforce an arbitration award. FED. R. CIV. P. 26(a)(1)(E). Most of these categories were exempted in the Local Rules for the Northern District of Florida. Compare Local Rule 26.1, N.D. Fla. with FED. R. CIV. P. 26(a)(1)(E).

(9) FED. R. CIV. P. 26(a)(1)(A)-(B).

(10) FED. R. CIV. P. 26(a)(1).

(11) See FED R. CIV. P. 29 (allowing for written stipulations to modify certain discovery procedures unless otherwise directed by the court). "But even if a case ... in which the parties stipulate to by-pass disclosure, the court can order exchange of similar information in managing the action under Rule 16." FED. R. CIV. P. 26(a)(1) Advisory Committee Note (2000 Amendments).

(12) See generally FED. R. CIV. P. 26 Advisory Committee Note (2000 Amendments).

(13) Following the 1993 Amendments, Rule 26(a)(1) provided for initial disclosures of: "(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to the disputed facts alleged with particularity in the pleadings, identifying the subjects of the information;

"(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to the disputed facts alleged with particularity in the p leadings;...."

FED. R. CIV. P. 26(a)(1)(A)-(B) (1994) (amended 2000) (emphasis added).

(14) Memorandum dated May 11, 1999 from the Judge Paul V. Niemeyer, Chair, Advisory Committee on Civil Rules to the Judge Anthony J. Scirica, Chair, Committee on Rules of Practice and Procedure, 192 F.R.D. at 358.

(15) See FED. R. CIV. P. 26(a)(1) Advisory Committee Note (2000 Amendments). These provisions were not part of the "opt-out" rule for individuals and tangible information enacted in 1993 and have received little attention.

(16) See FED. R. CIV. P. 26(a)(1). As with the 1993 amendment, Rule 26(a) sets forth three types of required disclosures: initial disclosures under Rule 26(a)(1), expert disclosures under Rule 26(a)(2), and pretrial disclosures under Rule 26(a)(3). Expert disclosures must be made at least 90 days prior to trial unless otherwise stipulated by the parties or ordered by the court and the party calling rebuttal experts must provide the same information within 30 days of receipt of the initial expert disclosures. The deadline for pretrial disclosures is at least 30 days prior to trial unless otherwise ordered by the court.

(17) "The attorneys of record and all un-represented parties that have appeared in the case are jointly responsible ... for submitting to the court within 10 days after the meeting a written report outlining the [discovery] plan." Fed. R. Civ. P. 26(f) (1994) (amended 2000).

(18) FED. R. CIV. P. 26(f) (amended 2000); Advisory Committee Note (2000 Amendments).

(19) Compare FED. R. CIV. P. 26(b)(1) (1994) (amended 2000) with FED. R. CIV. P. 26(b)(1).

(20) See FED. R. CIV. P. 26(b)(1).

(21) FED. R. CIV. P. 26 Advisory Committee Note (2000 amendments).

(22) FED. R. CIV. P. 30(d)(2).

(23) FED. R. CIV. P. 30(d)(2). The comment to the rule indicates that when more than one witness is produced in response to a Rule 30(b)(6) deposition notice, each person is treated as a separate deposition for purpose of the seven-hour limit. See FED. R. CIV. P. 30 Advisory Committee Note (2000 Amendment). Rule 30 also contains other minor changes, including the clarification that any person --not only a party--who purports to instruct a deposition witness not to answer is subject to the limitations on such instructions imposed by amendments to Rule 30(d) in 1993. See id.

(24) See FED. R. CIV. P. 37.

(25) See FED. R. CIV. P. 37(c)(1).

(26) See FED R. CIV. P. 37(c)(1).

(27) Memorandum dated May 1, 1999, from the Judge Fern M. Smith, Chair, Advisory Committee on Evidence Rules, to the Judge Anthony J. Scirica, Chair, Standing Committee on Rules of Practice and Procedure, 192 F.R.D. at 402.

(28) FED. R. EVID. 103 Advisory Committee Note (2000 Amendments).

(29) FED. R. EVID. 103(a)(2).

(30) See FED. R. EVID. 103 Advisory Committee Note (2000 Amendments).

(31) See FED. R. EVID. 702 Advisory Committee Note (2000 Amendments).

(32) See FED. R. EVID. 703.

(33) FED. R. EVID. 702. The Advisory Committee Note to Rule 702 contains a lengthy discussion of Daubert and other pertinent cases and will assist the court and counsel in resolving issues relating to expert testimony. The amendment does not address the procedural context, however, in which foundational questions regarding expert testimony must be decided.

(34) FED. R. EVID. 701.

(35) FED. R. EVID. 701.

(36) FED. R. EVID. 701 Advisory Committee Note (2000 Amendments).

(37) See FED. R. EVID. 703 (1999) (amended 2000).

(39) See generally Ronald L. Carlson, Is Revised Expert Witness Rule 703 a Critical Modernization for the New Century?, 52 FLA. L. REV. 715, 719-733 (2000).

(39) See Advisory Committee Note to Rule 703 for the specific courts and commentators which had taken differing positions on these issues.

(40) FED. R. EVID. 703.

(41) FED. R. EVID. 703.

(42) See FED. R. EVID. 403.

(43) See FED. R. EVID. 703.

Elizabeth A. Jenkins is a U.S. magistrate judge with the U.S. District Court for the Middle District of Florida in Tampa. Appointed in 1985, Judge Jenkins serves as president-elect of the Federal Magistrate Judges Association and is a member of the Electronic Public Access Working Group, an advisory committee to the Administrative Office of U.S. Courts. She received her B.A. from Vanderbilt University in 1971 and her J.D. from the University of Florida in 1976. She was an assistant U.S. attorney and an attorney with the Department of Justice.