NOTICE TO THE BAR
December 1, 2000
Among other recent amendments, the Federal Rules of Civil Procedure include requirements for mandatory initial disclosures (Rule 26(a)(1)) and early planning meetings of counsel (Rule 26(f)), a prohibition of certain Local Rule "opt out" provisions, a presumptive limit on the time duration of depositions, and a change in the Rule 26(b)(1) scope of discovery.
The order of the United States Supreme Court adopting the amendments provides that they took effect on December 1, 2000, and "shall govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending." In light of this order, the judges of this court have studied the amendments and their relationship to our Local Rules and determined en banc that our approach to their application in this court will be as follows:
Absent a showing of exceptional circumstances sufficient to support an order of the presiding judge in a particular case, the amendments to Rule 26(a)(1) (requiring early disclosure of certain information without any discovery request and prohibiting district courts from "opting out" by local rule from the disclosure requirement), Rule 26(d) (prohibiting district courts from "opting out" by local rule from the early bar of commencement of discovery), and Rule 26(f) (prohibiting district courts from "opting out" by local rule from the requirement that counsel meet and submit a report to the court concerning a discovery and case management plan) will not be applied to cases pending on or before December 1, 2000. These particular amendments are all designed and intended to occur in the early stages of litigation. The vast majority of cases pending on or before December 1, 2000 will have passed the stage at which the procedures mandated by the amendments to these three rules will be beneficial to development of such cases. Accordingly, this court has concluded that application of the amendments to Rules 26(a)(1), 26(d) and 26(f) to cases pending in this court on or before December 1, 2000 would not be "just and practicable," and the rules applicable prior to that date will be applied in this court to such cases, absent exceptional circumstances.
As to the remaining amendments, this court has determined that no general approach is advisable. For example, applying the new Rule 30(d)(2) presumptive seven-hour, one-day limit on depositions may not be just and practicable in a pre-December 1, 2000 case in which numerous depositions have already been conducted without being subject to the deposition time limit. On the other hand, applying the limit to a case filed before the effective date, but in which deposition discovery has not yet commenced, may be just and practicable. Similarly, it may be that the new distinction between attorney-managed discovery and court-managed discovery included in amended Rule 26(b)(1) would not justly and practicably be applied to a pre-December 1, 2000 case in which discovery rulings under the old standard have previously been made. On the other hand, the new scope of discovery standard in amended Rule 26(b)(1) might justly and practicably be applied, even in a case pending before December 1, 2000, if no discovery has been conducted, or if the Court has not yet made rulings concerning the scope of discovery in that case.
Accordingly, this court has determined that, unlike the amendments to Rules 26(a)(1), 26(d) and 26(f), the applicability of all other amendments to the Federal Rules of Civil Procedure to cases pending on or before December 1, 2000 will be determined by each judge on a case-by-case basis.
The amendments have various effects on the continued viability and necessity of certain of this court's Local Rules. The bar is hereby notified that the judges of this court recognize that the most recent amendments to the Federal Rules of Civil Procedure abrogate Local Rules 26.3E(A) and 26.4E as to all cases commenced after December 1, 2000. Our Court is in the process of reviewing our Local Rules, determining what revisions may be advisable in light of recent amendments to the Federal Rules of Civil Procedure. Proposed Local Rules amendments, if any, will be published and submitted to the bar for input and comment before adoption, consistent with the procedures concerning Local Rules that have been employed in the past.
Adopted by the Judges of the Eastern District of Louisiana at the en banc meeting of the Court December 13, 2000.