Changes to Rule 26 and Rule 56 took effect this month. The main change in Rule 26 is to expand the scope of expert preparation materials that are considered protected work product, and therefore not discoverable. Only “facts and data” considered by the expert are discoverable. Arguably this change could impede cross-examination of experts, or limit a party’s ability to obtain discovery of information that would be useful in attacking the opposing party’s expert opinion. On the other hand, the change enhances parties’ ability to search for and prepare their own experts for trial, without fear that drafts and notes will be discoverable. In other words, if I am understanding the import of this change correctly, a trial lawyer no longer needs to tell their expert to be careful what they write down, because most of those notes will now be considered protected work product. So, a victory for the ability to prepare for trial, and a defeat for the open exchange of information.
Rule 56 (summary judgment) has been revised to conform the rule’s language to common practice. It has been common for parties to file motions for “partial summary judgment,” even though the rule was not originally written with such a motion in mind. Instead, the rule merely contemplated that if the case was not dismissed on summary judgment, certain facts established by a summary judgment could be deemed established at trial. Now the rule expressly allows that particular claims or defenses can be eliminated by means of a summary judgment motion. There is still a tension between this practice, now enshrined in the text of the rule itself, and the original concept of the Federal Rules of Civil Procedure to eliminate forms of action and demurrers. The rules still allowpleadings to be amended even after trial to conform to the proof, so as to allow relief on any available legal theory based on the facts established at trial. But if “causes of action” (a terminology that was supposed to be eliminated by the Federal Rules), have been eliminated by prior Rule 12 or Rule 56 motions, potentially relief could be denied to a party that has established the necessary facts justifying relief. I understand the desire of parties and the court, to streamline cases for trial. On the other hand, summary judgment procedure has become so cumbersome that I’m not sure the trade-off is worth it.
(Stephen Dunn photo from Hartford Courant)