Proposed rule changes narrow discovery, limit depositions, and restrict expert testimony.

If the Supreme Court approves--and barring any adverse action from Congress--several proposed changes to federal civil procedure and evidence rules will become law on December 1, 2000, forcing plaintiff attorneys to file more fact-specific pleadings, conduct time-limited depositions, and adhere to stricter expert testimony guidelines.

The Court is currently reviewing a package of amendments. Changes to Federal Rules of Civil Procedure 26 and 30 would tighten discovery, alter initial disclosure requirements, and limit depositions to seven hours. Amendments to Federal Rules of Evidence 701,702, and 703 would prohibit experts from testifying as lay witnesses, codify the Court's Daubert and Kumho decisions, and create guidelines for admitting expert opinion based on inadmissable information.

The Judicial Conference of the United States, the policy-making body of the federal court system headed by Chief Justice William Rehnquist, ratified the changes last September and sent them to the Supreme Court in November. The Court has until May 1, 2000, to finish its review process, and conference officials expect the Court to approve the package.

"Historically, the Supreme Court has very infrequently modified the proposed amendments," said John Rabiej, chief of the Rules Committee Support Office, Administrative Office of the U.S. Courts. Rabiej's office assists the Judicial Conference's rule-making committees.

After the Supreme Court's review period, Congress has seven months to enact legislation to change the amendments. If Congress does not act, the amendments become law.

The Judicial Conference recommended the changes to address what its studies revealed to be the most expensive and time-consuming aspect of litigation--discovery. The conference's Standing and Advisory Committees examined discovery during a three-year study, which included statistical surveys and public hearings. A Federal Judicial Center survey, commissioned by the Advisory Committee, revealed approximately 5 percent to 15 percent of federal civil trials used discovery extensively. Discovery costs represented up to 90 percent of total litigation costs in those cases.

ATLA and other organizations filed general opposition to the proposed changes. The Conference eliminated one amendment that would have allowed a judge to impose the costs of discovery on litigants who the judge deemed to be excessive in their discovery requests. ATLA argued that federal judges already have the power to impose discovery sanctions against parties.

"We are very pleased with this result, especially since it is rare for the Judicial Conference to turn down a proposal from one of its committee after the extensive rule-making process has run its course. However, despite our best efforts, the conference did accept a proposed amendment that would narrow the scope of discovery," said ATLA President Richard Middleton Jr., who practices in Savannah, Georgia.

Middleton was referring to the proposed change in Rule 26(b)(1), which ATLA sees as having the greatest impact on plaintiff attorneys, especially those dealing with products liability cases.

Currently, attorneys are allowed to obtain discovery on any subject matter relevant to the case. But this amendment states that an attorney can conduct discovery without judicial intervention as long as the discovery information is "relevant to the claim or defense" of any party. Discovery that goes beyond relevant claims or defenses would be allowed only if a judge determines the request is for "good cause."

The danger that is posed in the proposed change to Rule 26(b)(1), ATLA argued, is that instead of protecting against excessive discovery, the amendment invites stonewalling and other forms of discovery abuse by defense attorneys.

"Far from remedying these serious problems, the current proposal appears to be premised on a defense-oriented definition of discovery abuse," Middleton said. "The more restricted scope of discovery could be used to limit the plaintiff's access to information to what the defendant wants the plaintiff to have, and therefore could deny the plaintiff essential proof."

Describing a potential scenario under the proposed amendment, Middleton used crashworthiness cases as an example. "If this proposal were applied to such cases, we believe it is likely that a plaintiff would receive only data related to accidents involving the plaintiff's particular model and year of automobile in virtually identical incidents and under identical road conditions, without regard to the general crashworthiness of the model line or the overall failure experience of a generic component. The plaintiff would then have to ask that the court intervene to get full disclosure or forgo full discovery," he said.

This amendment would force attorneys to file more fact-specific pleadings and discovery requests. "Changing the scope of discovery would establish a de facto abolition of notice pleading, with an increase in intensely packed, fact-specific pleadings expounding on numerous theories of liability or defenses," Middleton said.

The proposed initial disclosure amendments also have relevancy requirements. Currently, Rule 26(a)(1) mandates an automatic pretrial exchange of discovery but allows each court jurisdiction to "opt out" of the exchange. The opt-out provision was added in 1993 in the hope that a consensus regarding initial disclosure procedures would emerge in the courts. Instead, an array of different procedures emerged and eventually prompted the Federal Judicial Center study.

The conference's amendment proposes the elimination of the opt-out provision, establishing a uniform national rule that would require judges to enforce an automatic pretrial exchange unless the case qualified as an exemption. Amendment Rule 26(a)(1)(e) adds the following exemptions to initial disclosure rules:

* action for review of an administrative record;

* petition for habeas corpus or other proceeding to challenge criminal conviction;

* action brought without counsel by a person in custody;

* action to enforce or quash an administrative summons or subpoena;

* action by the United States to recover benefit payments;

* action by the United States to collect on a student loan;

* proceeding ancillary to another court; and

* action to enforce an arbitration award.

In another change to the civil procedure rules, the conference approved an amendment to Federal Rule of Civil Procedure 30 limiting depositions of potential witnesses to seven hours unless an extension is approved by the court.

Extensions would be granted in accordance with Rule 26. ATLA did not file any objection to this amendment.

New evidence rules

While committees discussed changes to Rules 701 through 703, the Supreme Court was considering Kumho Tire Co. v. Carmichael. (119 S. Ct. 1167 (1999).)

Ultimately, the Kumho opinion extended the ruling in Daubert v. MerrellDow Pharmaceuticals, Inc. (509 U.S. 579 (1993).) In Daubert, the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony, and the Court in Kumho clarified that this function applies to all expert testimony, not just to testimony based in science.

The Judicial Conference codified Daubert and integrated Kumho in the proposed change to evidence Rule 702. Additional change,; are also proposed for 701 and 703:

Rule 701: Experts as lay witnesses. This amendment aims to prevent lawyers from using experts as lay witnesses. Under the amendment, if the witness is not testifying as an expert, the testimony cannot be based on scientific, technical, or other specialized knowledge. The conference wanted to prevent any attempts to skirt the admissibility requirements of Rule 702.

Rule 702: Daubert decision codified. Trial judges would be required to decide if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness applied the principles and methods reliably to the facts of the case.

Rule 703: Bases of opinion testimony by experts. The amendment emphasizes that when an expert reasonably relies on inadmissible information to form an opinion or inference, it is the opinion and not the information that is admitted as evidence. Facts or data that are otherwise inadmissable may not be disclosed to a jury unless their probative value substantially outweighs their prejudicial effect.

Copies of the "requests for comment" versions of these amendments are on the Federal Judiciary Web site at www.uscourts. gov under the For Public Review section. The Supreme Court is considering modified versions, which were slightly altered in response to the public comments.