Federal Civil Procedure Amendments

On the first Monday in December some important revisions will affect civil practice in federal courts.

Federal Rule of Civil Procedure 8. General Rules of Pleading

The list of affirmative defenses in Rule 8(c) will no longer contain discharge in bankruptcy. Why not? Because, as the Advisory Committee

Note explains, the discharge voids a judgment and enjoins collection. It is therefore "confusing to describe discharge as an affirmative defense."

With this deletion the federal rule will have 18 affirmative defenses. The Tennessee version at Rule of Civil Procedure 8.03 has 20. In either jurisdiction, however, an unlisted affirmative defense can be asserted. Professor Pivnick in Tennessee Circuit Court Practice (2010) cites Thomasson v. Thomasson, 755 S.W.2d 799 (Tenn. 1988) (statutory defenses to allegations of adultery or cruel and inhuman treatment), and Raines v. Shelby Williams Industries, 814 S.W.2d 346 (Tenn. 1991) (misrepresentation on employment application in workers' compensation lawsuit).

Federal Rule of Civil Procedure 26. Duty to Disclose; General Provisions Governing Discovery

Significant changes are made to the work product doctrine as applied to lawyers and their experts. Although the rule language is confusing, the Committee Note is elucidating. The drafters' goal was to protect two things from discovery.

First, draft reports or disclosures prepared by experts are protected by Rule 26(b)(4)(B) "regardless of the form in which the draft is recorded." Second, communications between an attorney and expert are protected by Rule 26(b)(4)(C) "regardless of the form of the communications."

There are three exceptions to the communications protection. These are (1) communications relating to expert compensation, (2) communications of facts or data from the attorney considered by the expert, and (3) communications of assumptions provided by the attorney and relied on by the expert.

Federal Rule of Civil Procedure 56. Summary Judgment

The most important of several amendments concerning procedure for summary judgment motions is new Rule 56(c). According to 56(c)(1) both the movant and the opponent are required to support their assertions that a fact "cannot be or is genuinely disputed" in one of the following ways. You can cite to parts of materials in the record, including affidavits and depositions. Alternatively you can show that such materials do not establish the absence or presence of a genuine dispute. A final option is to show that your adversary cannot produce admissible evidence to support a fact.

Rule 56(c)(2) permits objections that materials cited to support or dispute a fact are not admissible in evidence.

What if the judge wants to consider materials other than those cited by the lawyers? Rule 56(c)(3) allows it so long as the materials are part of the court record.

When ruling on a summary judgment motion, Rule 56(a) provides that the federal judge "should" state reasons for granting or denying the motion. In contrast, Tennessee Rule of Civil Procedure 56.04 mandates that the judge "shall" state the legal grounds for granting or denying summary judgment.


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.