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Amendments to the Federal rules of civil procedure : hearing before the Subcommittee on Intellectual Property and Judicial Administration of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, June 16, 1993 online

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AMENDMENTS TO THE FEDERAL RULES OF CIVIL

PROCEDURE



\ u



HEARING



BEFORE THE



SUBCOMMITTEE ON INTELLECTUAL PROPERTY
AND JUDICLU. ADMINISTRATION



OF THE



COMMITTEE ON THE JUDICIAEY
HOUSE OP REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS
FIRST SESSION



JUNE 16, 1993



Serial No. 42



RECEIVE




MAY 2 7 20G3
BOSltiUBLIC LIBRARY

SOVEHNteti. . 3CUMENTS DEPJRTMENTi




Printed for the use of the Committee on the Judiciary



KF 3815 .A2 A53 19S4
United States. Congress.
HoTjse. Comnnittee on the
Arendnents to the Federal

ml es of CT vi 1 nT-rvoHi 1



HAMPDEN LAW LIBRARY

50 STATE ST., BOX 559
SPRINGFIELD, MA. 01102-0559



DEMCO




AMENDMENTS TO THE FEDERAL RULES OF CML

PROCEDURE



HEARING

BEFORE THE

SUBCOMMITTEE ON INTELLECTUAL PROPERTY
AND JUDICLyj ADMINISTRATION

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION



JUNE 16, 1993



SeHal No. 42




Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE
81-258 CC WASHINGTON : 1994



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-045950-8



COMMITTEE ON THE JUDICIARY



JACK BROOKS,
DON EDWARDS, California
JOHN CONYERS, JR., Michigan
ROMANO L. MAZZOLl, Kentucky
WILLIAM J. HUGHES, New Jersey
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
GEORGE E. SANGMEISTER, Illinois
CRAIG A. WASHINGTON, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT. Virginia
DAVID MANN, Ohio
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California



Texas, Chairman

HAMILTON FISH, JR.. New York
CARLOS J. MOORHEAD. California
HENRY J. HYDE, Illinois
F. JAMES SENSENBRENNER. JR..

Wisconsin
BILL McCOLLUM. Florida
GEORGE W. GEKAS. Pennsylvania
HOWARD COBLE. North Carolina
LAMAR S. SMITH. Texas
STEVEN SCHIFF, New Mexico
JIM RAMSTAD. Minnesota
ELTON GALLEGLY, California
CHARLES T. CANADY. Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia



Jonathan R. Yarowsky, General Counsel

Robert H. Brink. Deputy General Counsel

Alan F. Coffey. Jr., Minority Chief Counsel



Subcommittee on Inttellectual Property and Judicial Administration



WILLIAM J.

DON EDWARDS, California
JOHN CONYERS, Jr., Michigan
RAMANO L. MAZZOLl, Kentucky
MIKE SYNAR, Oklahoma
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
JACK REED, Rhode Island
XAVIER BECERRA, California



HUGHES, New Jersey, Chairman

CARLOS J. MOORHEAD, California
HOWARD COBLE, North Carolina
HAMILTON FISH, Jr., New York
F. JAMES SENSENBRENNER, Jr.,

Wisconsin
BILL McCOLLUM, Florida
STEVEN SCHIFF, New Mexico



Hayden W. Gregory, Counsel

Edward O'CONNELL, Assistant Counsel

William F. Patry, Assistant Counsel

JaRILYN Dupont, Assistant Counsel
Thomas E. Mooney, Minority Counsel

Joseph V. Wolfe, Minority Counsel



(II)



CONTENTS



HEARING DATE



Page

June 16, 1993 1

OPENING STATEMENT

Hughes, Hon. William J., a Representative in Congress from the State of
New Jersey, and chairman. Subcommittee on Intellectual Property and
Judicial Administration 1

WITNESSES

Cortese, Alfred W., Jr., attorney, on behalf of Lawyers for Civil Justice 110

Dunlap, F. Thomas, Jr., vice president, general counsel and secretary, Intel

Corp ■■ 107

Frank, John P., senior partner, Lewis and Roca law firm. Phoenix, AZ 52

Frazza, George S., vice president and general counsel, Johnson & Johnson 150

Higgins, John J., senior vice president and general counsel, Hughes Aircraft

Co 146

Keeton, Robert E., district judge, U.S. District Court for the District of Massa-
chusetts, and Chairman, Standing Committee on Rules of Practice and

Procedure, Judicial Conference of the United States 5

La Mothe, Louise A., chair, section of litigation, American Bar Association 74

Pendell, Judyth W., vice president, law and regulatory affairs, Aetna Life

and Casualty Co., on behalf of the American Insurance Association 69

Pointer, Sam C, Jr., Chief District Judge, U.S. District Court for the North-
ern District of Alabama, and Chairman, Advisory Committee on Civil

Rules, Judicial Conference of the United States 12

Schwarzer, William W, Senior U.S. District Judge, U.S. District Court for

the Northern District of California, and Director, Federal Judicial Center ... 25
Slate, William K., II, president, Justice Research Institute, on behalf of the

National Court Reporters Association 63

Toll, James D., attorney. Sills, Cummis, Zuckerman, Radin, Tischman, Ep-
stein & Gross, P.C., Atlantic City, NJ, on behalf of the New Jersey Defense
Association 91

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Cortese, Alfred W., Jr., attorney, on behalf of Lawyers for Civil Justice:
Prepared statement 114

Dunlap, F. Thomas, Jr., vice president, general counsel and secretary, Intel

Corp.: Prepared statement 108

Frank, John P., senior partner, Lewis and Roca law firm, Phoenix, AZ:

Prepared statement 55

Frazza, George S., vice president and general counsel, Johnson & Johnson:

Prepared statement •■ 151

Higgins, John J., senior vice president and general counsel, Hughes Aircraft

Co.: Prepared statement 148

Keeton, Robert E., district judge, U.S. District Court for the District of Massa-
chusetts, and Chairman, Standing Committee on Rules of Practice and
Procedure, Judicial Conference of the United States: Prepared statement .... 7

La Mothe, Louise A., chair, section of litigation, American Bar Association:

Prepared statement 75



(III)



IV

Page

Pendell, Judyth W., vice president, law and regulatory affairs, Aetna Life
and Casualty Co., on behalf of the American Insurance Association: Pre-
pared statement 70

Pointer, Sam C, Jr., Chief District Judge, U.S. District Court for the North-
ern District of Alabama, and Chairman, Advisory Committee on Civil
Rules, Judicial Conference of the United States: Prepared statement 15

Schwarzer, William W, Senior U.S. District Judge, U.S. District Court for
the Northern District of California, and Director, Federal Judicial Center:
Prepared statement 27

Slate, William K., II, president, Justice Research Institute, on behalf of the

National Court Reporters Association: Prepared statement 66

Toll, James D., attorney. Sills, Cummis, Zuckerman, Radin, Tischman, Ep-
stein & Gross, P.C, Atlantic City, NJ, on behalf of the New Jersey Defense
Association: Prepared statement 94

APPENDIXES

Appendix 1. — Statement of Hon. Bill McCollum, a Representative in Congress

from the State of Florida , 161

Appendix 2.— "The Cost of Depositions," October 28, 1992; and "Depositions
and Accuracy," April 1, 1993, studies conducted by the Justice Research
Institute 162

Appendix 3. — Supplemental statement submitted by Hon. William W
Schwarzer, Senior U.S. District Judge, U.S. District Court for the Northern
District of California, and Director, Federal Judicial Center, June 28, 1993 . 195

Appendix 4. — Statement of Messrs. Archibald, Fox, Hangley, Kieve, and

Weiner, June 16, 1993 197

Appendix 5. — Statement of the American Institute of Certified Public Ac-
countants, Securities Industry Association, Alliance of American Insurers,
American Insurance Association, National Association of Independent In-
surers, Aetna Life and Casualty Insurance Co., Allstate Insurance Co.,
Kemper National Insurance Co., Netherlands Insurance Co., and State
Farm Insurance Co., June 16, 1993 216

Appendix 6.— Statement of Herbert E. Hoffman, on behalf of the National

Association of Professional Process Servers (NAPPS), June 10, 1993 256

Appendix 7. — Statement of Thomas Hanna, president, American Automobile

Manufacturers Association 260

Appendix 8. — Letter from Erwin N. Griswold, Esq., Jones, Day, Reavis &
Pogue (with attachments), to Hon. William J. Hughes, chairman, Sub-
committee on Intellectual Property and Judicial Administration, June 15,
1993 269

Appendix 9.— Letter from Webster L. Hubbell, Associate Attorney General,
U.S. Department of Justice, to Hon. William J. Hughes, chairman, June
25, 1993 313

Appendix 10.— Letter from Wayne D. Brazil, U.S. magistrate, U.S. District
Court for the Northern District of California, to Hon. William J. Hughes,
chairman, June 11, 1993 315

Appendix 11.— Letter from Wayne D. Brazil, U.S. magistrate, U.S. District
Court for the Northern District of California, to Hon. William J. Hughes,
chairman, July 14, 1993 321

Appendix 12.— Letter from Brian Busey and Donna M. Murasky, cochairs.
Courts, Lawyers and the Administration of Justice Section, the District
of Columbia Bar (with attachments), to Hon. William J. Hughes, chairman,
June 16, 1993 323

Appendix 13. — Letter from Hon. Butler Derrick, a Representative in Congress
from the State of South Carolina, May 12, 1993, transmitting a letter
from Ashley B. Abel, Esq., Spartanburg, SC, May 3, 1993, to Hon . William
J. Hughes, chairman 347

Appendix 14. — Letter from Hon. William J. Hughes, chairman, to Hon. Butler

Derrick, June 2, 1993 •.••• ^^^

Appendix 15. — Letter from Sam C. Pointer, Jr., Chairman, Advisory Commit-
tee on Civil Rules, Judicial Conference of the United States, to Hon.
William J. Hughes, chairman, June 25, 1993 351

Appendix 16.— Letter from Patricia M. Hynes, chair. Committee on Federal
Courts, Association of the Bar of the City of New York (with attachments),
to Hon. William J. Hughes, June 23, 1993 356



V

Page

Appendix 17. — Letter from Gregory K. Arenson, Esq., Proskauer, Rose, Goetz
& Mendelsohn (with attachment), to Hon. William J. Hughes, chairman,
June 14, 1993 402

Appendix 18. — Letter from William K. Slate II, president. Justice Research

Institute, to Hon. WilHam J. Hughes, chairman, June 24, 1993 415

Appendix 19. — Letter from Fulton Haight, president, American College of
Trail Lawyers, to the Subcommittee on Intellectual Property and Judicial
Administration, June 28, 1993 417

Appendix 20. — Letter from J. Michael McWilliams, president, American Bar
Association (with attachment), to Hon. William J. Hughes, chairman, June
23, 1993 419

Appendix 21. — Letter from John J. Prout, Jr., C.S.R., president, John J.
Prout & Associates, Inc., to Hon. William J. Hughes, cnairman, June 23,
1993 426

Appendix 22. — Letter from Robert Dale Klein, chairman. Special Committee
on Rules of Practice and Procedure, the Maryland Association of Defense
Trial Counsel, Inc., to Hon. William J. Hughes, chairman, June 22, 1993 428

Appendix 23. — Letter from Barbara Allen Babcock, et al., Ernest W. McFar-
land professor of Law, Stanford Law School, to Hon. Jack Brooks, chair-
man. Committee on the Judiciary, June 11, 1993 432

Appendix 24. — Letter from Nan Aron, executive director. Alliance for Justice,
et al. (with attachment), to Hon. William J. Hughes, chairman, June 16,
1993 435

Appendix 25. — Letter from John P. Sweeney, Esq., Miles & Stockbridge, to

Hon. William J. Hughes, chairman, June 25, 1993 443

Appendix 26. — Letter from George A. Riemer, associate executive director
and general counsel, Oregon State Bar (with attachment), to Hon. William
J. Hughes, chairman, June 29, 1993 446

Appendix 27. — Letter from Frank P. Bramble, president and chief executive
officer, MNC Financial, to Hon. William J. Hughes, chairman, June 23,
1993 449

Appendix 28. — Letter from Harvey J. Reed for David A. Brune, general coun-
sel, Baltimore Gas and Electric, to Hon. William J. Hughes, chairman,
July 1, 1993 457

Appendix 29. — Letter from Charles E. Fenton, vice president and general
counsel. Black & Decker, to Hon. William J. Hughes, chairman, June 15,
1993 459



AMENDMENTS TO THE FEDERAL RULES OF

CIVIL PROCEDURE



WEDNESDAY, JUNE 16, 1993

House of Representatives,
Subcommittee on Intellectual Property

AND JUDICL\L ADMESIISTRATION,

Committee on the Judicl\ry,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room
2237, Rayburn House Office Building, Hon. William J. Hughes
(chairman of the subcommittee) presiding.

Present: Representatives William J. Hughes, Don Edwards,
Carlos J. Moorhead, Howard Coble, James F. Sensenbrenner, Jr.,
and Steven Schiff.

Also present: Hayden Gregory, counsel; Edward O'Connell, as-
sistant counsel; Phyllis Hendersen, secretary; and Thomas Mooney,
minority counsel.

OPENING STATEMENT OF CHAIRMAN HUGHES

Mr. Hughes. The hearing of the Subcommittee on Intellectual
Property and Judicial Administration will come to order.

The Chair has received a request to cover this hearing, in whole
or in part, by television broadcast, radio broadcast, and still pho-
tography, or by any of such methods of coverage. In accordance
with committee rule 5(a), permission will be granted unless there
is objection. Hearing no objection, such coverage is permitted.

Good morning and welcome to the hearing of the Subcommittee
on Intellectual Property and Judicial Administration on the amend-
ments to the Federal Rules of Civil Procedure.

The cost of obtaining legal assistance in our society is often be-
yond the means of many of our constituents. Reducing the cost of
litigation should be a priority for all of us.

Congress responded to the need for reform in part by passing the
Civil Justice Reform Act of 1990. The hearing today is focused on
an attempt by the judiciary to parallel such reform by amending
the Federal Rules of Civil Procedure.

The Supreme Court of the United States is empowered to pre-
scribe general rules of practice and procedure for cases in the Fed-
eral court system pursuant to the Rules Enabling Act. In this proc-
ess, the Judicial Conference appoints committees to propose such
rules, and in reality the Conference has a primary responsibility
for the amendments.

The act provides that proposed changes to the Federal Rules of
Civil Procedure will take effect on December 1, so long as the pro-

(1)



posed rules had first been transmitted to Congress by the Supreme
Court not later than May 1, of the year in which the rule pre-
scribed is to become effective, and Congress does not act with re-
spect to the amendments by December 1, of that year. This method
of amending the Federal Rules of Civil Procedure has been in effect
since about 1934.

In general, amendments to the rules have engendered little oppo-
sition in Congress or in the legal community as a whole. That, most
definitely, is not the case for the proposed changes before us today.
Proposed changes to rule 11 and the discovery rules 26, 30, 31, 33,
and 37 are the focal points of this particular controversy.

When addressing these reforms, we must keep in mind rule 1 of
the Federal rules and its call for a just, speedy, and inexpensive
determination of every action as well as section 2072's injunction
against abridging, enlarging or modifying substantive rights.

Rule 11, as now in force, requires that a court sanction a party
if the court finds that a motion or pleading introduced by the party
violates the rule. The sanctions may include costs and attorney fees
to the adversary.

As proposed, new rule 11 would leave sanctions to the discretion
of the district judge, and sanctions would be payable to the adver-
sary only in the event of unusual circumstances.

Proposed rule 11 also allows a 21-day grace period for a party to
remove his motion or pleading once he has received notice from his
opponent that rule 11 sanctions will be sought. Witnesses for the
new rule 11 will testify that mandatory sanctions were an impedi-
ment to the development of novel legal theories.

There is also evidence that controversies that involved civil
rights issues in the past were the subject of a disproportionate
amount of rule 11 sanctions.

Opponents of the rule feel that mandatory sanctions had a posi-
tive effect on the number of frivolous lawsuits, and they oppose
these changes.

Discovery rules concern the process through which a lawyer ob-
tains information from the other side to be used in litigation. Dis-
covery has been characterized as the process by which lawyers
leave no stone unturned, provided, of course, they can charge by
the stone. They often do.

Rule 26 governs most of the discoveiy process and the present
system has been the target of near universal criticism. The U.S.
Judicial Conference, in an attempt to streamline the discovery
process, has proposed new rule 26(a), which calls for mandatory
disclosure of matters "pleaded with particularity." Champions of
the proposed rule believe that it will avoid the unnecessary ex-
penses that are the hallmark of the discovery process as it stands

today.

Opponents feel that mandatory disclosure is contrary to the ad-
versary process and will compromise the attorney-client privilege.
They also feel that the standard that is "pleaded with particular-
ity" is too vague and will only increase the discovery burdens on
the system instead of reducing them. They feel that a change of
this nature should be taken with extreme caution and should await
the results of the civil justice reform experiments.



A third controversial rule change relates to rule 30, which pro-
vides the means of taking depositions. At the present time, leave
of court or stipulation of the parties is necessary if nonstenographic
means are to be employed. Proposed rule 30(b) would allow a law-
yer to use nonstenographic means without leave of court or stipula-
tion of the party.

Concerns have been raised in this area about the reliability and
durability of videotape or audiotape alternatives to stenographic
depositions. The reasoning behind the new proposed rule is that
the use of stenographers for every deposition may be an unneces-
sary expense.

Critics of this proposed rule argue that the real cost of litigation
will not be reduced because depositions that are to be introduced
at trial must be transcribed anyway. They also feel that the effect
of this rule will be to compromise the integrity of the judicial
process.

The desire to implement new technology and the parallel devel-
opment of new technology in both stenographic techniques and
video and audio recording further complicates this issue.

The need for reform to the civil justice system is an idea that all
sides involved can agree on. Reform must, however, take place on
the basis of reasoned discourse. The magnitude of these reforms de-
mand it, and this hearing is designed to provide a forum for that
discourse.

It promises to be a very interesting, informative and, I am sure,
helpful discourse today.

The gentleman from California, the distinguished ranking Re-
publican.

Mr. MOORHEAD. Thank you, Mr. Chairman.

I want to commend our chairman for the prompt hearings on pro-
posed amendments to the Federal Rules of Civil Procedure. The
vast majority of rule changes that have been recommended by the
Committee on Rules of Practice and Procedure should go into ef-
fect. That committee represented here today by its Chairman,
Judge Keeton, should be commended for their hard work and excel-
lent work product, although I may reserve judgment at this time
on two or three of their proposed changes.

This subcommittee processed the Civil Justice Reform Act of
1990, which has as its very primary purpose the reduction of costs
and delays associated with civil litigation. This law requires each
district in the country to draft and implement plans to reduce costs
and delay in our Federal court system. These plans should be ready
in each district by December 1993. Forty-one districts have their
plans in place. I am not familiar with all the details of these plans,
but I understand that 23 district plans include some form of
prediscovery experiment. At some point, they will report back to
Congress the results of these experiments. I am somewhat reluc-
tant to impose any major changes on our Federal court system, es-
pecially while these experiments are in process.

I served on the Federal Court Study Committee, and we exam-
ined a number of the problems facing our Federal judiciary. I am
pleased to see that our former staff director of that committee, Bill
Slate, is one of our witnesses this morning. We made our final re-
port to Congress in April 1990. Many of our recommendations were



directed at fine-tuning our Federal court system in order to secure
a fair, an expeditious and inexpensive determination of every ac-
tion.

I would be very reluctant to support any change to rule 11 that
would have the effect of weakening the sanctions that judges can
impose against lawyers. We all know that virtually all judges and
lawyers are concerned about the court system. They want to make
it work. But lawyers do get very involved with their clients. And
it is up to somebody, and the judges have that role, to see to it that
things are kept in line and the courts are kept in line, and that
they don't go too far off in one direction.

The Congress and the judiciary actually can do only so much, but
I think the bar association has a responsibility to do their part, and
they do a very fine job for the most part. But every once in a while
there are problems.

No one should be permitted to misuse or manipulate the system
to serve a frivolous purpose. Judges must have the authority, and
indeed must be encouraged to use that authority to see that the
court system runs the way that it should.

I am looking forward to this morning's testimony.
Thank you very much, Mr. Chairman.
Mr. Hughes. I thank the gentleman.

Does the gentleman from New Mexico have an opening
statement?
Mr. SCHIFF. Very briefly.
Mr. Hughes. The gentleman is recognized.
Mr. ScHlFF. I appreciate your recognizing me.
Mr. Chairman, I am concerned about the wording in the letter
of transmittal from Chief Justice Rehnquist in which he states that
"while the Court is satisfied that the required procedures have
been observed, this transmittal does not necessarily indicate that
the Court itself would have proposed these amendments in the
forms submitted."

Mr. Chairman, I recognize, perhaps this is standard boilerplate
language that has always accompanied these rules and we just
didn't notice because there has not been previous controversy that
we can remember in recent times, but I personally feel that the
U.S. Supreme Court should have a greater role in determining
what the rules of procedure in the courts are. And I think that is
a subject perhaps you as chairman can take up at some point.

In the meantime, I just want to share my concern over the pro-
posed rules, but I look forward to the testimony that may clarify
some of these problems.

I thank you and I yield back.

Mr. Hughes. If the gentleman will yield, if he yields back, it is
interesting because Justice White believes that the Rules Enabhng
Act should be changed to leave out the role of the Supreme Court
entirely.

Mr. ScHiFF. I believe that is because the Supreme Court sees its
role as perfunctory. I suspect that Justice White is saying, "If we
don't have a substantive role, why does it even go through us?"

I am proposing that the U.S. Supreme Court be given a clear and
substantive role. I don't think that the Supreme Court of this land



should submit rules of procedure to the U.S. Congress in which it
doesn't concur.

Mr. Hughes. The gentleman makes a very interesting point.

We have an excellent first panel. Our first panel is the Honorable
Robert E. Keeton, from the U.S. District Court for the District of
Massachusetts, and Chairman of the Standing Committee on Rules
of Practice and Procedure. Prior to his present position, Judge
Keeton served as an associate professor at Southern Methodist
University and Langdell professor and associate dean at Harvard
University. He is a member of numerous associations for trial advo-
cacy, and has published a variety of articles on a variety of legal
topics.

Our second panelist is the Honorable Samuel C. Pointer, Jr.,
Chief Judge, U.S. District Court for the Northern District of Ala-
bama, and Chairman of the Advisory Committee on Civil Rules for
the Judicial Conference of the United States. Judge Pointer has
had a long and distinguished career in the judiciary, including
membership in the Judicial Conference of the United States; the
Standing Committee on Rules and Practice; the Judicial Ethics
Committee; the Ad Hoc Committee on Asbestos Litigation; the Ju-
dicial Conference of the Eleventh Circuit; and President of the



Online LibraryUnited States. Congress. House. Committee on the JAmendments to the Federal rules of civil procedure : hearing before the Subcommittee on Intellectual Property and Judicial Administration of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, June 16, 1993 → online text (page 1 of 45)