Amendments Proposed for FRCP 26 and 56

In August, the Judicial Conference Advisory Committee published for comment its proposed amendments to the Federal Rules. The report of the Civil Rules Advisory Committee outlines several proposed changes to FRCP 26 and 56.

The proposed amendments to Rule 26 attempt to address two issues. As summarized in this brochure from the Committee,

The first deals with expert witnesses who are not required to prepare a detailed
report under Rule 26(b)(2)(B). Under the proposed amendment to Rule 26(a)(2),
the party (not the expert witness) must disclose the subject matter of the
expected expert testimony and a summary of the expected facts and opinions. The
second topic applies the work-product protections of Rule 26(b)(3)(A) and (B) to
limit discovery of drafts of expert disclosure statements or reports and, with
three exceptions, of communications between expert witnesses and counsel
regardless of form (oral, written, electronic, or otherwise). The exceptions are
for those parts of the attorney-expert communications regarding compensation,
identifying facts or data considered by the expert in forming the opinions, and
identifying assumptions relied on by the expert in forming the opinions.

Revisions to Rule 56 were also proposed to provide a consistent procedure for summary judgment. According to the same source,

The proposed rule requires that unless the court orders a different procedure in
a case, a party moving for summary judgment must submit a statement of facts
that it asserts are not in genuine dispute and entitle it to summary judgment.
The statement must list the asserted undisputed material facts in separate,
numbered paragraphs, with citations to the record. The party opposing the motion
must file a response to the statement that addresses each fact by accepting,
disputing, or accepting it in part and disputing it in part, either generally or
for purposes of the motion only. The statement and response are separate from
the briefs. Other proposed changes include addressing the consequences of
failing to respond or responding in a way that does not conform to the rule and
recognizing the well-established practice of granting summary judgment on part
or all of a claim or defense.