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

of case what is core information and could very easily be fleshed
out. But one doesn't have to sit and think too long before one can
come up with all sorts of difficulties in connection with more com-
plex litigation. And that proliferation is exactly what has been
bothering our section.

Mr. Hughes. I must say that in my own experience over the
years, I have seen so much game playing with the discovery proc-
ess, and it does drive up costs. It does drag out these cases, and
it does deny justice to a lot of individuals. So I am sympathetic to
the effort to try to get to the meat of the case.

I have seen situations where a judge doesn't have the foggiest no-
tion of what a case is all about, after 3 years, until he gets that
filing and gets ready to move it to trial.

Mr. Frank. Mr. Chairman, may I have one last thought before
you leave?

One topic we have not adequately dealt with, and it has been of
interest to you and Mr. — if I have his name correctly, Mr. Schiff
especially, and that is Justice White's suggestion about the need for
arnendments to the Rules Enabling Act. May I touch on that very
briefly? It is covered in my statement.

Mr. Hughes. Sure.

Mr. Frank. My deep hope would be that you, one of you, two of
you, would introduce a bill to open up the Rules Enabling Act. You
can't deal with that effectively, obviously, in this proceeding.

Now, all you are deciding is to let these rules go or not. But the
Rules Enabling Act has been around for a long time and it deserves
another look. Maybe Justice White was right. Maybe the Supreme
Court should be dropped out. Maybe it has a useful function. If you
could put in a bill and some Justice would come over here, some
representative of the court, to speak to you in detail and get to the
qualifications, it would be helpful, and there are some other aspects
of the Rules Enabling Act that very much warrant consideration by
you.

We wouldn't be having the problem we have today if the commit-
tees were of somewhat different constitution, for example. And I
express the deepest hope that you perhaps, or perhaps a majority,
minority, vvhatever leadership, would put in a bill which would
open up this subject and have hearings on whether we are on the
right track at all and how we should change the basics, if we
should.

Thank you.



90

Mr. Hughes. That is a very good suggestion, constructive sugges-
tion. We will certainly consider that. Thank you, Mr. Frank.

Well, you have been very, very helpful as a panel to us, and I
realize we have taken an awful lot of time, but these are very im-
portant issues. We appreciate that some of you came from such
long distances to be with us and, we appreciate your contributions
today. Thank you very much.

Mr. Hughes. Our third and final panel consists of James D. Toll,
partner in the Atlantic City, NJ, office of Sills, Cummis,
Zuckerman, Radin, Tischman, Epstein & Gross. Mr. Toll is a mem-
ber of the Defense Research Institute and is vice president for the
southern region of the New Jersey Defense Association, He has
been in private practice for about 13 years specializing in civil liti-
gation, primarily in the areas of product liability, construction liti-
gation and premises liability.

Also on this panel is F. Thomas Dunlap, vice president and gen-
eral counsel, for the Intel Corp., a constituent of our distinguished
colleague, Don Edwards. He joined Intel in 1974 as product engi-
neer, became administrator of technology exchange contracts in
1977, and moved to the legal department in June 1980.

Also on this panel is Alfred W. Cortese, Jr., partner in the law
firm of Kirkland & Ellis of Washington, DC. Mr. Cortese has liti-
gated tort and product liability cases before courts and administra-
tive agencies throughout the country. His area of expertise includes
mass torts and complex litigation and Federal and State civil jus-
tice policy and court administration.

Also joining this panel is John J. Higgins, senior vice president
and general counsel, Hughes Aircraft Co., and its parent organiza-
tion, General Motors Hughes Electronic. Prior to joining Hughes,
Mr. Higgins was an assistant general counsel for General Motors.
He joined General Motors' legal staff in 1959. Mr. Higgins has re-
sponsibility for all legal matters involving Hughes Aircraft, and is
principal legal adviser to the board of directors.

Our final panelist is George S. Frazza, vice president and general
counsel, Johnson & Johnson. Prior to joining J&J in 1966, Mr.
Frazza was an attorney with Royall, Koegel & Rogers law firm. He
is chairman of the Tort Reform Committee of the Pharmaceutical
Manufacturing Association, and a member of the Association of
Corporate Counsel of New Jersey.

Welcome.

Mr. Edwards. Mr. Chairman.

Mr. Hughes. The gentleman from California.

Mr. Edwards. Thank you.

Mr. Chairman, thank you for yielding to me for a moment. I wel-
come all of the panelists but I especially am pleased to have here
as one of our witnesses Mr. Thomas Dunlap of Intel. Intel is some-
thing that all America should be very proud of. We certainly are
in California and in Silicon Valley. It is on the cutting edge of
semiconductors and indeed is the largest manufacturer in the
world of semiconductors.

Mr. Dunlap was a great leader to us in 1984 when out of this
subcommittee came the Chip Protection Act, which in effect al-
lowed copyrighting the patterns on semiconductor chips, which has



91

been a big boon to this very important industry in the United
States.

Thank you, Mr. Chairman.

Mr. Hughes. I thank the gentleman for those remarks.

Mr. ScHiFF. Mr. Chairman, or Your Honor, as is appropriate

Mr. Hughes. Your Honor is OK today,

Mr. ScHiFF. A good deal of that production of Intel occurs in New
Mexico, not quite in my district, but not too far away.

Mr. Hughes. Not enough occurs in New Jersey, but we are work-
ing on that.

I thank the gentlemen for those introductory remarks.

Jim Toll is also a constituent of mine, a very prominent lawyer.
And I think you are joined today by Jim Ferguson?

Mr. Toll. That is correct.

Mr. Hughes. Would he like to ioin us?

We are delighted to have each of you today. You each bring a
great deal of expertise to the witness table. We appreciate that.
Many came from long distances, and we also appreciate that.

We have your statements, which we have all read, and we need
to get right to questions. So we would like you to summarize as
best you can, but you may proceed as you see fit.

Without objection, each of your statements will be made part of
the record in full.

Jim Toll, welcome.

STATEMENT OF JAMES D. TOLL, ATTORNEY, SILLS, CUMMIS,
ZUCKERMAN, RADIN, TISCHMAN, EPSTEIN & GROSS, P.C.,
ATLANTIC CITY, NJ, ON BEHALF OF THE NEW JERSEY
DEFENSE ASSOCIATION

Mr. Toll. Thank very much, Mr. Chairman and members of the
committee.

I am here today as a trial lawyer practicing in New Jersey and
representing the New Jersey Defense Association, which I am a
member of, as well as the Defense Research Institute, which is the
national organization of which NJDA is a member.

I am going to limit my remarks and hopefully make them as
brief as possible. I recognize that it is getting late in the hour, and
we have already had testimony from quite a number of witnesses.
My remarks are tailored specifically to the ethical dilemmas that
I see as a trial lawyer if the proposed rule 26(a)(1) is in fact
enacted.

There has been much discussion already concerning Maricopa
County, and with respect to surveys that may have taken place in
that particular county as far as the disclosure provisions are
concerned.

I have at length quoted from Mr. Bruno's article that appeared
in the Maricopa Lawyer. My remarks with respect to that particu-
lar article have to deal with the ethical dilemmas that he saw. And
his comments were based upon a proposal that was in effect in Ari-
zona which, in his words, was remarkably similar to the proposed
rule 26(a)(1).

If I could just be permitted to quote from that article, I think it
accurately, succinctly sets forth what my position is regarding the
ethical dilemmas. He indicates, "I cannot reconcile the adversary



81-258 0-94-4



92

system, the competitive marshaling of evidence and the zealous
representation of my client with the requirements of our disclosure
rule. The requirements of the disclosure militate against good
lawyering. Clients will be reluctant to hire a lawyer who has rep-
resented their business before, lest the lawyer knows too much that
he is forced to disclose to the other side."
That in a nutshell is the problem we see with respect to the pro-

f>osed enactment. You are dealing here with attorney-client privi-
ege. You are dealing with a situation which has an attorney rep-
resenting defendants in civil litigation. If I am given a file, and I
review the file, and I then meet with my client, under the proposed
amendment, I have to be very careful with respect to what is elic-
ited from my client, because I have an affirmative obligation to dis-
close relevant material.

And it may very well be a situation, as Mr. Bruno sets forth in
his article, that my client and I are in conflict, my client, on the
one hand, indicating perhaps this is information that is not rel-
evant, you don't need it, and I on the other saying, recognizing my
affirmative, ethical obligations, no, this is information that I have
to disclose.

Mr. Bruno raises the point, what then happens? Is it a situation
where the client suggests perhaps I need another attorney, or do
I as the attorney have to withdraw from the case? That is a very
critical and problematic area that I see with respect to the pro-
posed amendment.

The other deals with attorney work product. That has already
been discussed before by other panelists. The way the rule is pres-
ently drafted, there is tremendous ambiguity and vagueness with
respect to what is relevant. I have to make a determination as a
lawyer, is the information that I am going to impart to my adver-
sary, is that relevant information?

That is my thought process. Those are my mental impressions.
Perhaps I have one theory of the case that my adversary does not
share. If I impart information to him that he didn't even think
about, I have imparted a strategy to him. I have in essence done
the work for my adversary at the expense of my client.

Under that type of scenario, which I think is going to happen if
the rule is adopted, it creates a tremendous, tremendous problem
for trial lawyers. The situation can exist where we have to disclose
information on one hand, yet have a duty to zealously represent
the interests of our clients.

Those are very, very serious ethical dilemmas that Mr. Bruno ad-
dresses in his article and I see as being extremely, extremely
problematic.

I would just indicate, briefly, in closing, we have an adversary
system in place right now, a system where a plaintiff when filing
the lawsuit will give requests for information through document re-
quests and the like. A defense attorney will have the opportunity
to review the request, have an opportunity to review his file and
confer with his client, and then make an intelligent decision as to
which information is going to be disclosed. That is the adversarial
nature of the system.

If the rule is adopted, we do away with that, and I submit that
is not what we want to do. We don't want to be in a situation



93

where we are leaving to the courts that are already overburdened
the decision as to what is going to be relevant versus what isn't
going to be relevant. Rather, the system that is in place, which
places the onus on the parties, on the litigants, the lawyers rep-
resenting those parties, to make the determination and provide in-
formation in response to document requests, is the way the system
should operate.

And I would submit and urge the committee that with respect to
26(a)(1), it be rejected.

Thank you.

Mr. Hughes. Thank you, Mr. Toll.

[The prepared statement of Mr. Toll follows:]



94



Prepared Statement of James D. Toll, Attorney, Sills,

CUMMIS, ZUCKERMAN, RaDIN, TISCHMAN, EpSTEIN & GROSS, P.C,

Atlantic City, NJ, on Behalf of the New Jersey Defense
Association



Good morning Mr. Chairman and members of the Committee, I am James D. Toll
of the Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross law firm with offices
in Newark, Atlantic City, New Jersey, New York and Washington, D.C. I am representing
the New Jersey Defense Association (NJ.D.A.) which is a statewide organization of civil
defense attorneys and insurance company personnel. While I am here representing the
NJ.DA., my remarks have been prepared with input from and consultation with the
Lawyers for Civil Justice and the Defense Research Institute (DRI) which is a national
defense association of which the NJ.D.A. is a member. I appreciate this opportunity to
testify regarding some very serious problems for my clients that I think would result from
implementation of the proposed changes to Rule 26 requiring early automatic disclosure of
information "relevant to the disputed facts alleged with particularity in the pleadings." I
respectfully disagree with those who contend that opposition to this proposal is generated
primarily by attorneys, motivated by their own selfish economic interests. I think the
serious ethical problems created by this proposal will affect attorneys only in relation to
their representation of their clients. As a practical matter, I agree with those persons in the
business community who contend these changes will probably increase litigation expense
and delay rather than reduce them.



95



INTRODUCTION

I am very concerned about the effect the proposed changes to Rule 26 will have on
the adversary system which has been the hallmark of our civil litigation process. My
concern is for my clients because the adversary system has been developed over many, many
years for the protection of their rights.

Under our present system, the opposing party is responsible for identifying and
seeking pre-trial information that might be relevant to the case. My clients do not now have
an obligation to pay me to make an exhaustive investigation of all aspects of a case so I can
furnish all this information to the opposing party.

Under these pro|>osed changes, my clients will be required to help me identify all
information that might be relevant to facts pleaded in my opponent's complaint and to
voluntarily provide that information to my opponent before it is requested. This will require
my clients to pay me to do the work my opponent is now required to do.

Although I am an officer of the court, my duty to advance the interests of my clients
must be paramount. The obvious purpose for this duty is to protect the rights of my
clients. It is not to protect my rights or my personal economic interests. My clients will
naturally want to hire attorneys wiio best advance their interests.



96

Under these proposals, for the first time, I would have a continuing, afrirmative
obligation to seek and disclose to the opposing party information adverse to my clients'
interests.

This is certainly fundamentally unfair to my clients and it clearly places me in a
particularly treacherous position. It is a dramatic departure from the adversary system
which is as old as our country itself.

Before such a drastic change in our civil Justice system is implemented, I sincerely
believe more deliberate study and debate is needed. This departure from such a
fundamental aspect of our civil justice system is an untested process and it should not be
made at this time.

Another serious concern I have about the proposed disclosure process is that it would
seriously undermine protection and rights provided to my clients under the attorney work
product doctrine. Under the present system, I am not required to reveal the theory of my
clients' case or reveal a line of factual inquiry or legal reasoning that my opponent never
would have considered on his or her own. If the changes to Rule 26 are approved, I will be
required to reveal my mental impressions and legal judgments when I use my best efforts
to determine what might be "relevant" to facts pleaded with "particularity" in the pleadings.

The proposed changes will also undermine protection afforded that will be under the
attorney-client privilege which encourages full disclosure of facts from the clients to the
attorney. Under these changes, I will be required to disclose to the opposition everything



97

I have learned during th6 investigation from my clients about the case. This creates the
anomalous situation where the clients are potentially penalized by the attorney's exercise
of due diligence as disclosure to the adversary is increased when more information has been
uncovered.

Clients have a right to know that their own attorney will not be conducting a
vigorous and extensive investigation to find negative or self-destructive information so that
it can be voluntarily turned over to their adversary. Under the disclosure system, clients'
confidential communications to the attorney many no longer be protected. The candor and
trust between clients and attorney will be seriously impaired.

BACKGROUND

The notes to proposed Rule 26 state that the concepts of imposing a duty of
disclosure are contained in two law review articles - one from 1979 by Wayne D. Brazil, then
an associate professor of law at the University of Missouri - Columbia and now a magistrate
judge in the Northern District of California,' and the other from 1989 by Judge William
D. Schwarzer, then of the Northern District of California and now Director of the Federal
Judicial Center.^



' Brazil, The Adversarv Character of Civil Discovery: A Critique and Proposals for
Change. 31 Vand.L.Rev. 1295 (1978).

^ Schwarzer, The Federal Rules, the Adversarv Process and Discoverv Reform. 50
U.Pitt.L.Rev. 703, 721-723 (1989).



98

There is little doubt that the intent of the Judicial Conference Advisory Committee
in proposing the Rule 26 amendments is to confront and change the delicate balance of
counsel's responsibility to court and client — now tipped decisively in favor of the clients
by Rule U of the American Bar Association Model Rules of Professional Conduct — in
favor of a newly declared emphasis on responsibility to assist the court. One need look no
further than the simple amendment to Rule 1, to which two words will be added: "These
rules. . .shall be construed and administered to secure the just, speedy, and inexpensive
determination of every action." (emphasis supplied)

According to the letter transmitting the proposed amendments from the Chairman

of the Judiciary Conference Advisory Committee to the Chairman of its Standing

Committee, the explanation for adding the two words is:

In calling for the rules to be construed "and
administered" to secure the just, speedy, and inexpensive
determination of every civil action, the simple revision
highlights the central theme and purpose of the other proposed
amendments. Judges and attorneys share the responsibility to
see that the rules are utilized to achieve this objective.^

But beyond this recitation of what might be characterized as a simple and practical

extension of attorneys' current responsibilities, one finds confirmation of a new duty to help

the adversary in the Committee Notes to proposed Rule 26(a)(1):

Subparagraph (A) requires identification of all persons
likely to have information that bears significantly on any of the



' Preliminary Draft of Proposed Amendments to the Federal Rules of Civil

Procedure. August 1991, at 1.



99



claims and defenses presented by the pleadings in the case,
including damages. The limitation to those with "significant"
information is not intended to provide an excuse for failure to
identify persons whose information would not support the
party's contentions . ... As officers of the court, counsel are
expected to disclose the identity of those persons who, if their
potential testimony were known, might reasonably be expected
to be deposed or called as a witness by any of the parties.
Indicating briefly the general topics on which such persons have
information should not be burdensome, and will assist other
parties in deciding whether their depositions will actually be
needed.*

And just to nail it down, Judge Schwarzer has written:

Once it becomes routine and counsel become more
generally aware of their professional obligations as officers of
the court, disclosure should reduce the burdensome and
unproductive adversariness that now often characterizes
discovery. . . . Evasion and manipulation will be reduced as
attorneys recognize the rules to reflect their obligation as
officers of the court to eschew surprise and reveal even
damaging information , without engaging in the discovery games
now so prevalent [see committee note to Rule 26(a)(1)].*

These changes indeed will create a new and different litigating ethic, in which the

basis of claims or defenses will be founded "on wits borrowed from the adversary," to quote

the famous remark of Justice Jackson in Hickman v. Tavlor.*



* Id. at 27 (emphasis supplied).

' Schwarzer, New Discoveries for the Discovery Process. Legal Times, Nov. 25, 1991,
at 25-26.

* 329 U.S. 495, 516 (1947).



100

This increase in the obligations of attorneys to the court is not accompanied by any
corresponding decrease in their responsibilities to clients. Nor could it be. The source of
this ethical shift, according to Judge Schwarzer, is the civil law, which he says "for the
pretrial stages of litigation bears sympathetic examination, if not emulation. That practice
involves the staged development of the case under the direction of the judge, with a gradual
narrowing of issues as the facts are marshalled. The process is deliberate and controlled,
not competitive or confrontational."^

One might assume as a matter of procedure, to say nothing of substance, that a
signal revision of this magnitude in the ethical responsibilities of lawyers to their clients
could not be accomplished by a simple amendment to the Federal Rules of Civil Procedure.
Surely the extensive debate that attended even minor changes to the ABA Model Rules of
Professional Conduct, as well as the permutations of those rules adopted by the states and
other jurisdictions, suggests that a revision of this character would invite, indeed command,
extensive, prolonged and difficult consideration.'

There can be no debate about this reality:

The legal community has made it clear that it is a
breach of professional responsibility for a litigator to elevate
full disclosure above partisan interests by revealing, unless
clearly compelled to do so, probative evidence that is damaging
to the client. Strong professional sanctions can be imposed



' Schwarzer, Federal Rules, supra Note 2, at 717.

* See Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of
Professional Conduct. 14 Law & Soc. Inquiry 677, 678 (1989).



101



against litigators who follow such a course. Marketplace
economics further reinforce these pressures.'

SUPREME COURT TRANSMITTAL

The irreconcilable ethical problems that would be created for attorneys is best

summarized in the dissenting statement of Justices Scalia, Thomas and Souter in the Chief

Justice's transmittal of these rules changes to Speaker Foley:

The proposed new regime does not fit comfortably within the
American judicial system, which relies on adversarial litigation
to develop the facts before a neutral decisionmaker. By placing
upon attorneys the obligation to disclose information damaging
to their clients — on their own initiative, and in a context
where the lines between what must be disclosed and what need
not be disclosed are not clear but require the exercise of
considerable judgment — the new Rule would place intolerable
strain upon attorneys' ethical duty to represent their clients and
not to assist the opposing side. Requiring a attorney to make
a judgment as to what information is "relevant to disputed
facts" plainly requires him to use his professional skills in the
service of the adversary. See Advisory Committee Notes to
Proposed Rule 26, p. 96.

THE ARIZONA EXPERIENCE

Some of the ethical problems associated with a similar experimental disclosure
scheme adopted in Arizona are discussed in a local bar association publication by DRI
colleague, Robert J. Bruno of the Teilbourg, Sanders & Parks firm in Phoenix."



' Frankel, The Search for Truth: An Umpireal View. 123 U.Pa.L.Rev. 1031, 1312