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

doubtedly obvious to each of you, as that is the date by which the
plans of local district courts throughout the country, under the
Civil Justice Reform Act of 1990, are scheduled to be completed.

Now, in passing that act, we believe that Congress established a
very viable framework which was intended to achieve much-needed
reform, which we also recognize is needed. And that reform is to
include discovery reform through the use of the experiments devel-
oped and implemented by the local 94 district courts.

The results of these diverse and innovative plans are to be ana-
lyzed and are to be used as a basis for the creation of a national
discovery rule. So far, 34 district courts have implemented plans,
and the remainder are scheduled to begin implementation by the
end of this year.

We have had broad-based advisory groups which have been in-
volved in the creation of those local plans. Lawyers have been in-
volved in those advisory groups in a meaningful way. If the pro-
posed amendments to rule 26(a)(1) were to be adopted now, it is
going to effectively preempt the experiments which are going on in
the local district courts, and we believe that valuable information
that Congress intended to receive from those experiments could be
lost.

The Civil Justice Reform Act was adopted in order to allow lab-
oratories to exist around the country, to learn of unforeseen prob-
lems, and side effects that can often result from an instance in
which discovery or other types of reform has been well meaning but
untested.

So the district courts — learning through trial and error what is
effective and what isn't — should be allowed to continue with their



75

experiments, unimpeded bv this blanket rule which would be
adopted if the changes to rule 26(a)(1) are put into place.

Now, it could be argued that because there is an opt-out feature
which is included in the proposed changes, that the local courts can
still devise their own plans, and thereiore you do not need to defer
adoption of rule 26(a)(1). However, we believe that the very exist-
ence of a national blanket rule is going to bias the current experi-
mentation and may, in reality, forestall it completely, particularly
in those districts that have not yet begun their own implementa-
tion. And it is as a result of our concern not to stifle that creativity
that we suggest to you that adoption at this point would be unwise.

Meanwhile, the litigation section of the American Bar Associa-
tion, along with a variety of other groups, has been working to
shape the reform of the current rules to take into account the dif-
ferences among different types of litigation. One of those efforts by
way of example is a national symposium on civil justice improve-
ments which is scheduled to occur this December. It is going to in-
clude other ABA entities, consumers, public interest groups, busi-
ness and so forth, and we hope that Congress will also be involved
in that effort.

We believe that Congress in any case should have the oppor-
tunity to review the recommendations from this symposium, as
well as recommendations coming in from other sources before mak-
ing the changes that are currently contained in these proposed
amendments to rule 26.

So, in closing, I want to just say that reform is needed, confusion
is not needed, and we urge Congress accordingly to allow the local
94 district courts to continue the experimentation under the Civil
Justice Reform Act.

Thank you.

Mr. Hughes. Thank you very much.

[The prepared statement of Ms. La Mothe follows:]

Prepared Statement of Louise A. La Mothe, Chair, Section of Litigation,

American Bar Association

My name is Louise A. La Mothe. I am a member of the bar of the State of Califor-
nia, admitted in 1972. I am a partner in the law firm of Riordan & McKinzie, with
offices in Los Angeles, Costa Mesa and Westlake Village, California. I appear today
on behalf of the Section of Litigation of the American Bar Association. I presently
serve as the Chair of the Section of Litigation.

My statement endeavors to reflect the consensus of the deliberations of the Coun-
cil of the Section of Litigation of the American Bar Association. The views expressed
here have not been specifically approved by the House of Delegates or the Board
of Governors of the American Bar Association. However, the position adopted by the
Litigation Section Council is fully consistent with the ABA policy endorsing the in-
tent of the Civil Justice Reform Act of 1990, and to that extent does represent ABA
policy.

The Litigation Section, with approximately 63,000 members, is the largest section
of the Anierican Bar Association. The ABA has 351,000 total membership. The focus
and mission of the Litigation Section is to provide leadership and training to, and
exchange of information among, trial lawyers and litigators. As attorneys, our fun-
damental goal is to serve our clients in the best way possible. As ofiicers of the
court, we also have a duty to make the justice system work efTiciently and fairly.

This statement, and my appearance before the House Subcommittee on Intellec-
tual Property and Judicial Administration, is in response to the invitation of the
Honorable Jack Brooks, Chairman of the House Committee on the Judiciary. The
Section of Litigation is grateful for the opportunity to present these views on wheth-
er Congress should permit the proposed disclosure changes to Rule 26 of the Federal
Rules of Civil Procedure to go into effect or whether Congress should delay their



76

adoption. We urge that Congress defer the adoption of the proposed amendments
to Rule 26(a)(1) until December 31, 1995.

I. THE PREMISE OF THE PROPOSED RULE IS CORRECT

Our statement here is limited to Rule 26(aXl).

The Council of the Section of Litigation, comprised of litigating lawyers, supports
the premise and the goals of the proposed amendment to achieve: (a) the voluntary
exchange of basic information (particularly the names and addresses of persons hav-
ing knowledge and the location of documents most relevant to the case) early in the
litigation process; and (b) greater control over the discovery process which in its cur-
rent form, when not properly managed by the litigants and courts, can often be inor-
dinately expensive and protracted. The courts, the legal community, and the public
all realize the need for a reduction in the delays currently inherent in the discovery
process and welcome guidelines that will encourage an equitable, early exchange of
information that make the assessment and management of a case simpler, shorter,
and consequently, less expensive to the litigant and the taxpayer.

II. BACKGROUND OF THE SECTION OF LITIGATION'S VIEWS ON THE PROPOSED RULES

In February, 1992, the Section, as well as other groups, was invited to present
its views on the then proposed amendments to the Federal Rules before the United
States Judicial Conference Advisory Committee on the Civil Rules. At that time, the
Section stated that, although we generally supported the concept of disclosure, we
found problems with the wording of Rule 26, as then proposed. We urged the Advi-
sory Committee to defer blanket changes in the discovery rules until results of the
experimentation in local federal district courts around the country under the Civil
Justice Reform Act of 1990 could be known.

After hearing from a variety of groups and individuals, the Advisory Committee
on the Civil Rules subsequently reconsidered and redrafted some of the language
to the present form of proposed Rule 26(aKl). No hearings have been held by the
Advisory Conmiittee on the now revised language.

III. DEFERRING THE ADOPTION OF PROPOSED RULE 26(aXl) IS MOST CONSISTENT WITH
THE PURPOSES OF THE CIVIL JUCTICE REFORM ACT OF 1990

The Civil Justice Reform Act of 1990 ("CJRA") requires that every federal district
court develop and implement local rules designed to attack the problem of delay and
expense in civil litigation. The legislation provided for the involvement of advisory
groups, comprised of attorneys and representatives of major categories of litigants.
Thirty-eight districts already have reported, and many have experimental rules in
place. The rest of the ninety-four districts will put their plans in place by the end
of this year. The United States Judicial Conference is charged with the task of eval-
uating the results and reporting back to Congress by the end of 1995.

Recognizing the need for experimentation— the freedom to learn by trial and
error— Congress created a system of district court 'laboratories." This local approach
is proving to be an effective method by which the district courts can develop their
own unique plans to achieve civil justice reform goals. Most of these plans have pro-
visions, with several variations, dealing with improvements in the discovery process.
It would undermine the spirit of that legislation to interfere with the plans now in
place, or soon to be implemented, before the empirical results of each court's experi-
ences has been collected. Invaluable information regarding which approach in prac-
tice best satisfies the goal of streamlining the discovery process without causing un-
intended and undesired side effects is exactly what Congress intended to achieve
from the CJRA. We should let litigants and the courts, through the CJRA, benefit
from this unique opportunity to obtain real life experiences and then act

accordingly. j j- i

We understand that pursuant to proposed Rule 26(aXl), the proposed disclosure
rules are subject to an exception "to the extent otherwise stipulated or directed by
order or local rule." While this provision will permit courts to continue their own
experimentation under what in effect is an "opt-out" procedure, we believe the pro-
posed national rules will nevertheless bias this experimentation, and perhaps retard
the degree to which local federal courts explore the range of different formulations
of a possible disclosure obligation. By contrast, deferral of the disclosure rules in
Rule 26(aKl) until December, 1995, will permit local courts to experiment with the
proposed version of the rules without mandating— where no local rules have been
promulgated — a "default" to the current untested version of those rules.



77

The intent of Congress in its adoption of the CJRA can be best achieved through
the unimpeded completion of the district courts' experimental plans and the analysis
of the resulting experiences, scheduled for December, 1995.

IV. CONGRESS SHOULD CONSIDER DEFERRING THE ADOPTION DATE OF ANY AMENDMENT
TO RULE 26(a)(1) UNTIL THE NATIONAL SYMPOSIUM ON CIVIL JUSTICE IMPROVEMENTS
HAS CONVENED AND ISSUED SUGGESTED IMPROVEMENTS

For many months, the American Bar Association, with the active involvement of
the Litigation Section, has been working with a broad spectrum of consumer, public
interest, business and other groups to develop a set of consensus proposals in the
areas of discovery improvements, case management techniques, devices to ensure
the enhanced utilization of alternative dispute mechanisms and measures to achieve
greater efficiencies in the trial process itself. With the assistance of academic report-
ers, we are now well along in the drafting process and our proposals will be pre-
sented at a National Symposium on Civil Justice Improvements in Washington in
early December. We will oe meeting with Congressional officials during the next
several weeks to detail our efforts and invite their participation. We are reviewing
various forms of disclosure along with a host of other approaches. In preparing our
recommendations, we are paying close heed to the proposal so far set forth in the
CJRA plans and the early reports on the efTectiveness of these various approaches.
We believe that the conclusions reached at the Symposium, which will be published
early next year, will yield additional constructive recommendations for improve-
ments in the discovery process and that an important change of the kind here pro-
posed should await the results of that undertaking.

V. CONCLUSION

While the Section of Litigation continues to favor the voluntary exchange of basic
information, we would also point out that the experimentation process now ongoing
in the district courts seems likely to generate much needed further improvement to
the currently proposed rules. While we believe it would be premature, for reasons
expressed earlier, to reach final judgment now regarding necessary revisions to the
proposed disclosure rules, we believe by way of example that further study ought
to be required with respect to:

Means for permitting discovery to proceed in advance of, or instead of, man-
datory disclosure, where delays built into the current disclosure rules are unde-
sirable; and

Standards by which litigants may seek exception from the requirements of
disclosure where, for example, the standards of" relevance should be tempered
by considerations of burdensomeness or other factors. See Fed. R. Evid. 403.
We also believe it would be prudent to await the recommendations of the upcom-
ing National Symposium on Civil Justice Improvements. This focused look at discov-
ery improvements, as well as other civil justice reforms, can only help to clarify this
issue for all of us.

In short, the intent of Congress and its adoption of the CJRA can be achieved best
through unimpeded completion of the district courts' experimental plans and the
analysis of the resulting experience scheduled for December, 1995.

Mr. Hughes. Mr. Frank, Ms. Pendell testified that a Federal Ju-
dicial Center study shows that 80 percent of the judiciary wants to
see rule 11 retained in its present form.

Of the judges surveyed back in 1990, 71.9 percent indicate that
the benefits of rule 11 outweigh judges' expenditure of time on
those issues. Also, 80.9 percent believe that rule 11 had had a posi-
tive effect on litigation in the Federal courts.

These are the folks that have to live with this thing.

Mr. Frank. Your Honor, with deference, they are not the folks
that have to live with it. It is the bar that has to live with it. Every
once in a while you do get a matter in the system in which there
is a difference, almost a class difference, within the profession.

What I observed earlier is that as between cats and mice, it is
more fun to be a cat than to be a mouse. The fact of the matter
is that the bar is objecting strenuously to all sides of it. I am
speaking for at least six former chairmen of the litigation section,



78

which is the main branch of the ABA for court purposes, for the
American College of Trial Lawyers which made the basic sugges-
tions I have espoused, and by no means all of which have been
adopted, for the full board of governors of the American Trial Law-
yers Association, and, I hasten to add, for numerous judges in
addition.

The civil rights bar is particularly strenuous on this point be-
cause the matters have been particularly unfortunate in that area.
Judge Schroeder of the ninth circuit, the third senior judge there,
is one of the sponsors of the proposals I have presented. Judge
McKay, the Chief Judge of the tenth circuit, is one of the sponsors
of the proposals I have presented. Judge Sloviter, the Chief Judge
of the third circuit, has espoused those proposals. Numerous other
judges — ^you have the whole list attached to my statement — ^have
strongly backed these proposals as well.

One figure that was used which simply shows you the enormity
of the thing, is that the American Judicature Society study, which
has been presented, showed that 82 percent of the lawyers polled
had been involved in one form of rule 11 problem or another. And
from my own standpoint is the standpoint of judicial administra-
tion. It is simply too much.

The thing has gotten out of all reason and out of all utility. The
purpose, granted, was a good one. But the special element that I
particularly stress is the seventh circuit bar study showing the
great increase in incivility among lawyers. What happens now is
that you have to go after the loser to say that he shouldn't have
had the suit in the first place.

I stress the fact that the defense bar is — representatives are also
very strenuously unhappy with the rule. We asked for much more
radical revisions than we got. What this proposal does in its mod-
est way is simply provide for a deterrent system.

That is my response, I hope not too lengthy, to your question.

Mr. Hughes. You answered my question. Thank you.

Do you have any idea of what percentage of rule 11 motions are
granted?

Mr. FRA>fK. We have the figures. The record shows some 3,000
cases, and I think that sanctions have been allowed in something —
between 500 and 1,000 reported instances. These, by the way, are
very concentrated in particular districts. Particular judges use the
power much more than others. So that you get pockets. But that
is the best I can do by way of answer.

It is the cost of arguing about it that is the misfortune. Also the
malpractice factor, which was brought out.

Mr. Hughes. Does that suggest that there are a lot of spurious
matters that are brought before the courts, having that high a
percentage?

Mr. Frank. No, I think, Your Honor, that the proportion is suffi-
ciently small that it does not. The real difficulty is in telling what
is spurious and what is frivolous.

The problem, Mr. Chairman, is that it is easy to use the word
"frivolous" as though it conveyed meaning, but it really doesn't.
The most dramatic single instance or study is the study by the
Federal Judicial Center that showed that on a sampling asking



79

judges whether a case was or wasn't frivolous, they divided exactly
50/50.

So that it becomes a matter of perspective, and frankly some-
times of irritability and so on. The safe harbor device will get rid
of a good many of them if people want to get rid of them that way.
The abuse has been dreadful.

You have also, especially from the civil rights bar, very unhappy
stories of very severe abuse. The problem of Brown v. The School
Board is an illustration of an idea that was innovative when it was
filed. I was counsel with Thurgood Marshall in that matter. I sup-
pose if we had lost we would have been in violation of rule 11. It
was directly in contradiction of Plessy v. Ferguson. One man's inno-
vation is going to look like another fellow's dumb idea.

Mr. Hughes. Mr. Slater, in your written statement you say that
the deposition process should not be relegated to a lesser standard
of accuracy than other court proceedings.

Mr. Slate. Yes.

Mr. Hughes. If, as Judge Schwarzer has testified, only a small
fraction of depositions are used in trials, why should we require a
stenographer?

Mr. Slate. Well, for the reasons that I have mentioned. First of
all, the cost factor is very clear. The cost of using a stenographer
is substantially less. It is less costly to the court system and it is
less costly to the litigants.

Mr. Hughes. But doesn't the rule change just permit the lawyers
to make that decision?

Mr. Slate. Certainly the Congress can do that, but our position
is that Congress probably doesn't want to encourage a rule that en-
courages greater cost and which also encourages the use of limited
vision technologies and noncomputer-based technology.

Although the present rule provides for, we think, generous oppor-
tunities for lawyers to make decisions, it doesn't seem to us that
a rule should encourage a process that is more expensive, less accu-
rate, and includes a delay factor in transcribing, enhancing oppor-
tunities for error.

And finally, the problem is, when depositions are taken and
there is a lag time and you have multiple players in the process,
the opportunities for error are substantial.

There is also the delay factor with respect to what happens to
the credibility of the tape, the audio or videotape.

So for those three reasons, the cost factor, the accuracy factor,
and the noncomputer-driven technology factor, we maintain that
Congress and the courts should not be encouraging a rule that in-
culcates such problems as the norm.

Mr. Hughes. I don't totally understand that, because as I under-
stand, the rule will permit the lawyers to make that decision. If I
am involved in a deposition and I am not happy with the manner
in which a person is to be deposed, I would opt, I would think, to
either discuss it with counsel or have a different form of tran-
scription taken.

Mr. Slate. Well, clearly you have that option under the present
rule.

Mr. Hughes. Won't you have it under this rule?



80

Mr. Slate. You will have it under the proposed rule, clearly you
would, but the rule in its context would seem to encourage that.
And we say any rule that encourages a methodology that is going
to be less accurate, more costly, and employs a limited vision tech-
nology — audio and video are not computer driven — ^really places
both the courts and the Congress in the position of encouraging a
process that in most all respects is already passe.

Mr. Hughes. I think your point is probably well taken. I think
that technology basically has outrun the promulgation of the rules
to a great extent.

Mr. Slate. Yes, it has, indeed.

Mr. Hughes. I think Arizona perhaps points the way, the direc-
tion that I would expect

Mr. Slate. That is true, Mr. Chairman, not only in Federal
courts, but even more so in State courts. State courts in many re-
spects are taking the lead here, in computer-integrated courtrooms
involving a stenographer, and for the reasons I mentioned earlier,
those other benefits to this technology, this real-time reporting,
which enables the hearing impaired and the visually impaired, be
they jurors or litigants or judges, to be fully involved, it is clearly
the way the technology is going.

Mr. Hughes. So you are content with the present rule?

Mr. Slate. Absolutely, yes.

Mr. Hughes. You wouldn't rewrite it in any way?

Mr. Slate. For the accuracy, cost, and computer-driven argu-
ments, the present rule is just fine.

Mr. Hughes. You would not rewrite it in any way?

Mr. Slate. I would not, no.

Mr. Hughes. Ms. Pendell, in your testimony you voice concern
that revised rule 11 would allow post-filing investigation of a claim.
That is one of your contentions. Isn't it necessary for the lawyer to
conduct extensive post-filing investigations under the present rule?

Ms. Pendell. Oh, yes. This current rule 11 is no substitute for
that. But it requires that before a claim is filed that there is some
reason to believe that it is based in fact or in law.

Could I respond very quickly to your earlier question to Attorney
Frank? The current rule 11 does not use the word "frivolous." If I
could just read to you what is sanctionable under the current rule,
because it also goes to the other issue of whether or not good deci-
sions that have been made in the past would in fact not have oc-
curred because they would have been subject to rule 11 sanctions,
because they weren't based on precedent.

The current rule 11 requires that "to the best of the signer's
knowledge, information and belief, formed after reasonable inquiry,
it is well grounded in fact and is warranted by existing law or a
good-faith argument for the extension, modification, or reversal of
existing law."

So as you can see, it doesn't require the definition of frivolous,
and it also allows for the circumstances that Attorney Frank re-
ferred to.

Mr. Hughes. Thank you.

Ms. La Mothe, your statement emphasizes a need for experimen-
tation in the area of disclosure, and I agree with that. Didn't the



81

Rules Committee respond to that concern by allowing the parties
or the district judge to opt out of the disclosure system?

Ms. La Mothe. Yes, Mr. Chairman, the proposed rule does allow
for an opt-out, and I think that our response to that is that while
an opt-out procedure is certainly better than nothing, that it puts
the onus, we believe, in the wrong place. And we are particularly
concerned about biasing the experimentation which is currently
underway.

We might choose, for example, when the dust has settled, to have
a different type of mandatory disclosure rule than the one that is
presently before you.

There is a lot of opportunity for a lot of experimentation now.
And our feeling is that rather than try to do this on a piecemeal
basis at the local level, that it makes more sense simply to stand
back for the length of time necessary to see what the local courts
decide under the Civil Justice Reform Act.

Mr. Hughes. Mr. Frank, I wonder if you can respond to that.