The federal Committee on Rules of Practice and Procedure (the “Standing Committee”) has posted pending amendments to the federal appellate rules, bankruptcy rules, civil rules, criminal rules, and evidence rules.
The Standing Committee explained that: “An amendment to a federal rule generally takes about three years.” Rules are promulgated under the Rules Enabling Act, 28 U.S.C. §§2071, et seq.
The proposals were transmitted to Congress by the Chief Justice on April 24, 2023.
“Congress has a statutory period of at least seven months to act on any rules prescribed by the Supreme Court. If the Congress does not enact legislation to reject, modify, or defer the rules, they take effect as a matter of law on December 1. 28 U.S.C. §§ 2074, 2075.”
This blog focuses on three proposed amendments to the Federal Rules of Evidence. The proposed amendments discussed in this blog are projected to go into effect on December 1, 2023.
QUICK SUMMARY OF THREE PROPOSED AMENDMENTS
Three changes were summarized by the Standing Committee.
Rule 702 regarding expert testimony will be amended: “The proposed amendments to Rule 702’s first paragraph and to Rule 702(d) are the product of Advisory Committee work dating back to 2016. As amended, Rule 702(d) would require the proponent to demonstrate to the court that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.’”
The “rule of completeness” in Fed.R.Evid. 106 will be amended to “allow any completing statement to be admitted over a hearsay objection and would cover all statements, whether or not recorded.”
The sequestration rule, Fed.R.Evid. 615, “would limit an exclusion order under the existing rule to the exclusion of witnesses from the courtroom, and would add a new subdivision (b) that would provide the court discretion to issue further orders prohibiting excluded witnesses from accessing or being provided with trial testimony.”
PROPOSED AMENDMENTS TO FED.R.EVID. 702 (EXPERTS)
The Committee Note states that:
Rule 702 has been amended in two respects:…
First, the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule. See Rule 104(a). This is the preponderance of the evidence standard that applies to most of the admissibility requirements set forth in the evidence rules….
[Second,] Rule 702(d) has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.
Importantly, the Committee adds: “Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, the judge should (where possible) receive an estimate of the known or potential rate of error of the methodology employed, based (where appropriate) on studies that reflect how often the method produces accurate results…. This amendment does not, however, bar testimony that comports with substantive law requiring opinions to a particular degree of certainty.”
The amended Rule will provide that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
PROPOSED AMENDMENTS TO FED.R.EVID. 106 (COMPLETENESS)
The Committee Note to Rule 106 states that: “Courts have been in conflict over whether completing evidence properly required for completion under Rule 106 can be admitted over a hearsay objection. The Committee has determined that the rule of completeness, grounded in fairness, cannot fulfill its function if the party that creates a misimpression about the meaning of a proffered statement can then object on hearsay grounds and exclude a statement that would correct the misimpression…. A party that presents a distortion can fairly be said to have forfeited its right to object on hearsay grounds to a statement that would be necessary to correct the misimpression…. Under the amended rule, the use to which a completing statement can be put will depend on the circumstances.”
Additionally, the Committee Note states that: “Rule 106 has been amended to cover all statements, including oral statements that have not been recorded…. The rule is expanded to now cover all statements, in any form — including statements made through conduct or sign language…. A party seeking completion with an unrecorded statement would of course need to provide admissible evidence that the statement was made. Otherwise, there would be no showing that the original statement is misleading, and the request for completion should be denied.”
Under the proposal, Fed.R.Evid. 106 will state:
Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.
This Rule may have ramifications in use of electronically stored information.
I have pointed to evidentiary issues concerning so-called “modern attachments” or “pointers.” See What Hath Noom Wrought? and What is a “Document?” Consider the impact of Rule 106. If – under Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021) – an email with a “modern attachment” is produced in discovery without the linked document, can an adverse party “require the introduction of that time, of any other part – or any other statement” by arguing that the linked document “ought to be considered at the same time”?
Another issue that Rule 615 may raise is presented by spreadsheet formulas, Excel workbooks, PDF portfolios, text bubbles, and collaboration channels. See “Modern Attachments” or “Pointers”- What is a Document? (Part IV). For example, assume that an accountant is testifying. The accountant is shown a paper spreadsheet that was prepared four years ago. It states that the net present value of a stream of income is $104,230.64. However, the formula nested in the cell of the Excel spreadsheet is not visible on paper. The testifying account cannot see, for example, the interest rate that was used to calculate the value. Can an adverse party “require the introduction of that time, of any other part – or any other statement” by arguing that the missing Excel formula “ought to be considered at the same time”?
PROPOSED AMENDMENTS TO FED.R.EVID. 615 (SEQUESTRATION)
The Committee Note states that Fed.R.Evid. 615 is amended for two purposes.
“Most importantly, the amendment clarifies that the court, in entering an order under this rule, may also prohibit excluded witnesses from learning about, obtaining, or being provided with trial testimony.” This makes clear that a Rule 615 order “extends beyond the courtroom, to prohibit excluded witnesses from obtaining access to or being provided with trial testimony.” This is because “the core purpose of the rule is to prevent witnesses from tailoring their testimony to the evidence presented at trial….” The Committee Note adds:
“Nothing in the language of the rule bars a court from prohibiting counsel from disclosing trial testimony to a sequestered witness. To the extent that an order governing counsel’s disclosure of trial testimony to prepare a witness raises questions of professional responsibility and effective assistance of counsel, as well as the right to confrontation in criminal cases, the court should address those questions on a case-by-case basis.”
The Note continues:
“Second, the rule has been amended to clarify that the exception from exclusion for entity representatives is limited to one designated representative per entity. This limitation, which has been followed by most courts, generally provides parity for individual and entity parties. The rule does not prohibit the court from exercising discretion to allow an entity-party to swap one representative for another as the trial progresses, so long as only one witness-representative is exempt at any one time. If an entity seeks to have more than one witness-representative protected from exclusion, it needs to show under subdivision (a)(3) that the witness is essential to presenting the party’s claim or defense. Nothing in this amendment prohibits a court from exempting from exclusion multiple witnesses if they are found essential under (a)(3).”
The proposed rule will be titled: “Excluding Witnesses from the Courtroom; Preventing an Excluded Witness’s Access to Trial Testimony….” While I am not tracking every proposed edit in this blog, it adds: “An [exclusion] order under (a) operates only to exclude witnesses from the courtroom. But the court may also, by order: (1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and (2) prohibit excluded witnesses from accessing trial testimony.”
This blog was initially posted on Electronic Discovery Reference Model.