Changes to Rule 56 of the Federal Rules of Civil Procedure

Here are amendments to the Federal Rules which became effective on December 1, 2010.

  1. The amendments to Rule 8 delete the reference to “discharge in bankruptcy” from the rule’s list of affirmative defenses that must be asserted in response to a pleading.
  2. The amendments to Rule 26 extend work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, to the discovery of communications between testifying expert witnesses and retaining counsel. The amendments also provide that a lawyer relying on a witness who will provide expert testimony but is not required to provide a Rule 26(a)(2)(B) report – because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony – must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer.
  3. The amendments to Rule 56 are intended to improve the procedures for presenting and deciding summary judgment motions, to make the procedures more consistent across the districts, and to close the gap that has developed between the rule text and actual practice. The amendments are not intended to change the summary judgment standard or burdens. The amendments include (1) requiring that a party asserting a fact that cannot be genuinely disputed provide a “pinpoint citation” to the record supporting its fact position; (2) recognizing that a party may submit an unsworn written declaration, certificate, verification, or statement under penalty of perjury in accordance with 28 U.S.C. § 1746 as a substitute for an affidavit to support or oppose a summary judgment motion; (3) setting out the court’s options when an assertion of fact has not been properly supported by the party or responded to by the other party, including considering the fact undisputed for purposes of the motion, granting summary judgment if supported by the motion and supporting materials, or affording the party an opportunity to amend the motion; (4) setting a time deadline, subject to variation by local rule or court order in a case, for the filing of a summary judgment motion; (5) explicitly recognizing that “partial summary judgment” may be entered; and (6) clarifying the procedure for challenging the admissibility of summary judgment evidence.
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3 responses to “Changes to Rule 56 of the Federal Rules of Civil Procedure

  1. There is also apparently a change in the timing permitted a Reply Brief?

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