Rulemaking 2007 — Article
Gregory P. Joseph
Effective December 1, 2007, barring unforeseen circumstances, new rules will govern the filing of papers in all cases in federal court — civil, criminal, bankruptcy and appellate. The new rules mandate redaction of certain identifying personal information (‛personal identifiers“) from all filings.
The Advisory Committee on the Federal Rules of Civil Procedure is also considering substantial changes to Rules 26(a)(2) and 56 — the key rules that govern expert reports (and, thus, expert evidence) and summary judgment.
In addition, the Civil Rules will be entirely rewritten as of December 1, 2007, unless the Supreme Court or Congress intercedes. Last, the Standing Committee on Rules of Practice and Procedure is in the midst of a project to make time computation uniform among all of the various rule sets. This article explores these developments.
E-Government Act Rules. The E-Government Act of 2002 (Pub. L. 107-347, § 205(c)(3)) requires the Supreme Court to promulgate rules ‛to protect privacy and security concerns relating to electronic filing“ of court papers. In response, the Advisory Committees on the Federal Rules of Civil, Criminal, Bankruptcy and Appellate, Bankruptcy Procedure have drafted uniform rules to delete personal identifiers from all federal court filings. Notably, the rules are not limited to papers that are electronically filed. They apply to paper filings as well.
Proposed Federal Rule of Civil Procedure P. 5.2(a) is illustrative. It requires redaction of personal identifiers from all civil filings such that:
• Only the last four digits of a social security number appear.
• Only the last four digits of a taxpayer-identification number are included.
• Only the birth year, and not the birth date, of any person is used.
• Only the initials, and not the names, of minors appear.
• Only the last four digits of any financial account are set forth.
Proposed Fed. R. Civ. P. 5.2(b) contains exceptions. Among other things, counsel have no obligation to redact the record of an administrative or agency proceeding, a state court proceeding, or any other record of a court or tribunal that was not originally subject to the redaction requirement (e.g., an arbitration). Special treatment is also accorded Social Security and immigration records under Rule 5.2(c).
The text of Rule 5.2 can be found at http://www.uscourts.gov/rules/Appendix_F.pdf, at pages 2-5. The parallel amendments to the criminal, bankruptcy and appellate rules are accessible at http://www.uscourts.gov/rules/jc0906.htm.
Expert Reports and Evidence. The Advisory Committee on Civil Rules, through its Discovery Subcommittee, is considering whether the expert witness rule — specifically, Rule 26(a)(2)(B) — should be amended (1) to protect drafts of expert reports from discovery, (2) to protect some or all communications between counsel and expert form discovery, (3) to require reports from treating physicians, and (4) to require reports from employees of parties who plan to deliver expert testimony at trial.
Previous articles (e.g., Expert Spoliation, NAT’L L. J. June 23-30, 2003 at 21, and Engaging Experts, NAT’L L. J. April 18, 2005 at 12) reflect my view that the cost of allowing discovery of drafts and of most, if not all, expert/counsel communications outweigh the benefits. Last summer, the American Bar Association adopted a resolution urging that draft expert reports and attorney-expert communications relating to the expert’s report largely be protected from discovery. (The resolution is available at http://www.abanet.org/crimjust/policy/am06120a.pdf.)
That position may be making some headway. The Discovery Subcommittee of the Civil Rules Committee convened a conference on the four issues itemized above on January 13, 2007, in Scottsdale. A report on that meeting from Professor Daniel J. Capra, the Reporter to the Advisory Committee on the Federal Rules of Evidence and the Reed Professor of Law at Fordham Law School can be found at the Complex Litigation Blog posting of January 15, 2007 (http://www.jha.com/us/blog). Professor Capra reports that:
• There was debate about the interplay of immunizing draft reports and/or counsel communications with experts.
• There appeared to be consensus that treating physicians should not be required to file written reports.
• Some employee experts may become subject, if not to a report requirement, at least to a written description of their testimony by counsel for their employers.
Subjecting some employee experts to any report or statement requirement is potentially problematic, unless communications with counsel are protected. Consider, for example, an employee in a senior management position is to give expert testimony — e.g., in a securities fraud action, the CFO is to testify that the company’s financial statements complied with GAAP. A senior management person is likely to participate in numerous privileged communications with litigation counsel purely by virtue of his or her position. Under the prevailing construction of Rule 26(a)(2)(B), all of those communications with counsel would be discoverable. But only Congress, and not rulemakers, can affect (or abrogate) privilege under the Rules Enabling Act, 28 U.S.C. § 2074(b). Therefore, unless these communications with counsel are protected, any amended rule might run afoul of the Rules Enabling Act.
Summary Judgment. On January 29, 2007, the Advisory Committee on the Federal Rules of Civil Procedure is holding a mini-conference in New York to address possible amendments to Rule 56. The conference is motivated by a concern over a perceived disparity between practice and the text of the existing rule. A number of amendments are under consideration. One significant revision would require: (i) the moving party to file a statement of undisputed facts on which it is relying, (ii) the adversary to file a paragraph-by-paragraph response to each fact asserted to be undisputed, with an opportunity to introduce additional facts, and (iii) the moving party to reply in like fashion.
Dueling statements of undisputed fact are already required in many district courts. This requirement is most expensive in cases of any magnitude. Opponents are wary of conceding something inadvertently, and they look for the most fragile adjective in each paragraph of a statement of undisputed fact as an excuse to object to the paragraph. Query whether the benefit justifies the cost. Nonetheless, because this requirement does exist in many, if not most, districts at present, and for that reason may become a universal requirement under an amended Rule 56.
A report on the proceedings of the Advisory Committee meeting of January 29, 2007 — during which this and other issues are to be debated — will be available on the Complex Litigation Blog in a January 30, 2007 posting (http://www.jha.com/us/blog).
Style Amendments to the Civil Rules. December 1, 2007, is also expected to mark the advent of the entirely rewritten Federal Rules of Civil Procedure. These amendments — known as the Style amendments and covering every rule — are intended to be purely stylistic. The goal is to clarify and simplify the rules, and make them easier to understand, without changing any substantive meaning. The Committee Note to each rule reiterates that these amendments are purely stylistic, with no change in meaning intended..
The rewritten rules are easier to read. The text is also visually more accessible, with additional subdivisions broken out in strings of indented items. There will be some electronic research problems, however, as a limited number of rules have been renumbered as well as rewritten. The re-styled Civil Rules can be accessed at http://www.uscourts.gov/rules/Appendix_D.pdf.
Style/Substance Amendments to the Federal Rules of Civil Procedure. In addition to the Style Amendments, the Advisory Committee decided to make a series of uncontroversial amendments that cannot be said to be purely stylistic. A prime example is amending Fed. R. Civ. P. 11 to include the email address of the signer in addition to his or her physical address and telephone number. These amendments are also expected to take effect on December 1, 2007. They can be found at http://www.uscourts.gov/rules/Appendix_E.pdf.
Time Computation. Time is not computed uniformly in the rules. The Standing Committee has undertaken a major time computation project, under the supervision of Judge Mark R. Kravitz of the District of Connecticut, that will include revisions to time periods in all of the rules — civil, criminal, bankruptcy and appellate.
These future rules would:
• Abolish the two-tiered method of counting periods more than 10 days and less than 10 days.
• Adopt a method for computing time when a deadline is expressed in hours rather than days.
• Create a uniform method for computation regardless of whether the deadline is forward-looking or backward-looking.
• Define ‛last day“ for purposes of computing time (e.g., midnight for e-filing; as long as the clerk’s office is accessible for paper filing).
It is not presently contemplated that that there will be any change to the current practice of adding three days for service that is accomplished other than by hand.
The minutes of the Standing Committee from June 2006, which include discussion of the time computation project, are available at http://www.uscourts.gov/rules/Minutes/ST06-2006.pdf.
* Gregory P. Joseph Law Offices LLC, New York. Fellow, American College of Trial Lawyers; Chair, American Bar Association Section of Litigation (1997-98), and member, U.S. Judicial Conference Advisory Committee on the Federal Rules of Evidence (1993-99). Editorial Board, Moore’s Federal Practice (3d ed.). Author, Sanctions: The Federal Law of Litigation Abuse (3d ed. Supp. 2007); Civil RICO: A Definitive Guide (2d ed. 2000); Modern Visual Evidence (Supp. 2007).
© 2007 Gregory P. Joseph
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