Amendment Of Key Federal Rules Underway

Amendments to Federal Rules of Civil Procedure 26 and 56 have been proposed.

The FRCP 26 amendment would alter the way certain expert witness disclosures are conducted, and would clarify the scope of work product privilege when expert witnesses are retained.

The FRCP 56 amendments would require parties moving for summary judgment to itemize the facts that they believe to be undisputed, and for parties resisting the motion for summary judgment to separately state which factual allegations, if any, are disputed (in a manner similar to a complaint and answer). These comparisons of the facts would be made separately from the briefs. Local rules require these statements already in some jurisdictions.

At first glance, my diagnosis is "mostly harmless."

My biggest concern is that the changes to FRCP 56 would encourage diliatory quibbling over disputed facts and would elevate the amount of wordsmithing that goes into such motions, with the net result that fewer motions for summary judgment would be granted when they are actually appropriate. It also seems to encourage parties to recant previously established agreements on facts when their relevance to a motion for summary judgment becomes clear.