Trial Magazine

It has been another busy year in federal rulemaking. AAJ members should be aware of newly effective rules, as well as proposed rules that could impact their practices.

Rules going into effect. Important changes to the Federal Rules of Evidence (FRE) are effective on Dec. 1, 2023.

Expert witness testimony. Amendments to FRE 702 apply the preponderance standard to admissibility determinations on proffered expert testimony. The amendments also limit an expert’s opinion to conclusions that are based on the reliable application of their principles and methods.

Excluding witnesses. Amendments to FRE 615 clarify which witnesses may be excluded from the courtroom. They also permit courts to file additional orders prohibiting excluded witnesses from learning about, obtaining, or being provided with trial testimony.

Completing statements. An amendment to FRE 106 broadens its scope beyond written and recorded statements—now all statements, including oral and signed statements, are subject to the rule of completeness. The amended rule also provides that a statement must be completed over a hearsay objection if required under the fairness standard.

Proposed rules to watch. In addition to these new rules, two noteworthy proposed amendments to the Federal Rules of Civil Procedure (FRCP) are currently in formal comment period. AAJ encourages members to review the proposed amendments and file comments by Feb. 16, 2024. Comments do not need to be lengthy to be impactful.

Proposed rule on multidistrict litigation (MDL). The Committee on Rules of Practice and Procedure has proposed new rule FRCP 16.1 to establish guidance for early management of MDL proceedings. The rule would encourage transferee judges to address certain matters at the outset of an MDL, such as scheduling an initial management conference and requiring parties to meet and prepare a report addressing pretrial issues. It sets forth 12 possible topics for early discussion, including the procedure for appointing leadership counsel, the method and timing for exchanging information about the factual bases for claims and defenses, and a proposed discovery plan.

A proposed MDL rule has been under discussion since 2017. Throughout the informal rulemaking process, AAJ and its members advocated against controversial proposals that have been excluded from the version of the rule published for public comment. However, the fight is far from over.

The defense bar is pushing to include additional topics on the initial MDL proceeding management discussion list that would make it harder for plaintiffs to establish their claims. Some of the proposed topics would be premature for discussion before the court appoints leadership counsel.

Proposed rule on privilege logs. The Committee on Rules of Practice and Procedure has also proposed amendments to FRCP 26(f) and 16(b) on privilege logs. The amendments would direct parties to determine the timing and method for complying with privilege log requirements under FRCP 26(b)(5)(A) early in the litigation process. In addition, the amendments would prompt courts to address privilege log issues in scheduling or case management orders.

The public comment version of the rule amendments excludes language urged by the defense bar that would have expressly permitted categorical logging, which makes it more difficult to determine why an individual document is being withheld by the producing party. However, the Committee Note to proposed FRCP 26(f) still suggests that categorical logging may be preferred in some cases.

AAJ encourages members to consider how these amendments might disincentivize over-designation and whether early discussion of the timing and format of privilege logs would be useful in your practice area.

For more information on the proposed rules changes, potential issues for comments identified by AAJ, and the process for submitting comments, visit www.justice.org/federalrules or contact Sue Steinman (susan.steinman@justice.org) or Kaiya Lyons.

Kaiya Lyons is AAJ’s senior legal counsel and can be reached at kaiya.lyons@justice.org.