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

lems than it will solve for Congress not to do something about it.

Let me just very briefly hit on a couple of the reasons why that
is the case. Now, an overwhelming majority, as I have indicated,
opposes mandatory prediscovery disclosure. For example, approxi-
mately 260 comments were filed dealing with disclosure, with the
conference. Two hundred and fifty of them, approximately, were op-
posed to disclosure.

Ten Federal judges filed comments. Two of them were favorable.
One was Judge Schwarzer and one was Magistrate Judge Brazil,
both of whom have connections obviously with the process, and
would be expected to support it. Eight other working trial judges
opposed disclosure very, very strenuously.

Seventeen witnesses appeared at the two hearings that were
held on these rules as a whole opposing specifically disclosure. And
as you have heard, the committee itself reversed its field at least
once on this issue. We feel, and Mr. Higgins and Mr. Frazza will
make these points very specifically from their own experiences as
general counsel of major corporations involved in litigation, in ef-
fect the customers of the system, that it will not be a remedy in
the cases where you really need it.

And if it is a remedy at all, it is only in those cases where it is
not needed. There has to be some distinction in how this is applied.
Although there may be some experience that it may be applied ap-
propriately in some cases, in most cases it probably will not be ap-
plied appropriately.

For example, I have got a stack of papers here from Texas, as
a matter of fact, from the Eastern District of Texas that Mr.
Dunlap said he had just good experience in. This is one round of
motions and disclosure in a case that is 1 of 15 cases that the same
plaintiffs lawyer has had pending for several years, in a case



112

where massive discovery has already been made. It is a fairly typi-
cal product litigation, product defect litigation.

A reading room has been established in this case and in this
group of cases, and what the lawyers are doing is they are fighting
about what disclosure should be made and what disclosure
shouldn't have been made. That is what all this paper is all about.

Now, that we don't need.

Mr. Hughes. Let me just interrupt you, if I might. I apologize
for having to do this, but we have got about 5 minutes left to catch
that vote. So we are going to recess for this vote and perhaps a sec-
ond vote. As soon as they are over, we will come right back.

The committee stands in recess.

[Recess.]

Mr. Hughes. The subcommittee will come to order. I apologize
for the delay and for the way this has been stretched out today.

Mr. Cortese, I apologize for the interruption. You may continue
summarizing your statement.

Mr. Cortese. I have a couple of quick points.

First of all, obviously, we are in favor of striking 26(a)(1) from
the amendments and letting the other amendments proceed with
respect to the discovery rules, and I would like to summarize the
reasons for that. We feel that prediscovery disclosure will increase
the motion practice and satellite litigation. It will promote
overdisclosure and increase, not reduce, discovery costs, delay, and
abuse.

I would like to refer to the study, the famous Arizona study from
Maricopa County. This is reported in the Maricopa Lawyer.

It was a study by the Arizona Defense Association, and there
were questionnaires sent out to 500 attorneys; 171 of them re-
turned their opinions. The responses were up to 10 to 1 in some
instances that the rules have chilled clients' willingness to level
with their own attorney; have increased costs to clients; caused
conflict with other Supreme Court rules; led to difficulty for attor-
neys to keep the confidence and secrets of clients.

Let me give you a couple of the responses. Question one: Some
have expressed concern that the new rules obligating a lawyer to
disclose relevant information to opposing counsel will create a
chilling effect on clients' willingness to level with their own attor-
neys. Is this concern valid? One hundred and thirty-seven said, yes,
it is valid. Frivolous, 16 said it was.

Question two, has the disclosure requirement of rule 26(1) in-
creased or decreased cost of litigation for your clients? Increased,
110 said it had increased costs. Decreased costs, eight. No effect,
26. Undetermined, 30.

Those are the kinds of experience already in the record, I think,
that the committee can take into account in really determining that
disclosure is inconsistent with the adversary system and the work
product doctrine; that it undermines the attorney-client privilege;
and injects ethical dilemmas into the attorney-client relationship
and is just not going to work, will not save any money.

I think what we have heard from those who would support dis-
closure — who are a handful of judges and one or two practition-
ers — that this one-size-fits-all is an appropriate thing to be tried.
We would submit to you it ought not to be tried; andf if it is, that



113

it ought to be deleted nationwide and that the experiments ought
to go forward under the Civil Justice Reform Act.

We do not need another discovery weapon, what I would — ^with
Your Honor's permission — characterize as the misguided missile of
disclosure.

Thank you very much.

[The prepared statement of Mr. Cortese follows:]



114



STATEMENT OF

business roundtable lawyers committee

Chamber of Commerce of the United States

National Association of Manufacturers

Association of American Railroads

American Automobile Manufacturers Association

American Bankers Assocl\tion

Product Liabiltty Advisory Council, Inc.

Defense Research Instttute

Federation of Insurance and Corporate Counsel

International Assocl\tion of Defense Counsel

Lawyers for Ctvtl Justice

Submitted to

The Subcommfttee on Intellectual Property
AND Judicial Administration

OF THE

House Judicl^ry Commfttee

for the

June 16, 1993 Hearing on Proposed Amendments to
THE Federal Rules of Civil Procedure

CONGRESS SHOULD DELETE

PROPOSED RULE 26(a)(1)

MANDATORY PRE-DISCOVERY DISCLOSURE

FROM PENDING AMENDMENTS TO
THE FEDERAL RULES OF CIVIL PROCEDURE



Introduction

The rulemaking committees of the Judicial Conference are to be commended
for their dedicated efforts to eliminate seemingly intractable discovery problems. For the
most part, we support the results of these efforts. Nonetheless, one of the recommended
solutions — adoption of the pending mandatory disclosure amendment in new Federal Rule
of Civil Procedure 26(a)(1) - will add to discovery problems, rather than help solve them.*
Rule 26(a)(1) creates an entirely new, pre-discovery process imposing an untested obligation



The text of proposed Rule 26(a)(1) is produced in Appendix A.



115

on federal litigants that is likely to increase motion practice and satellite litigation, cause
more contentiousness between litigants, and place additional demands on scarce judicial
resources - all results contrary to the stated purpose behind the proposed discovery
amendments. Moreover, at its extremes, disclosure is sharply at odds with fundamental
tenets of our adversary system of justice, zmd could compromise the attomey-cUent
relationship as well as the attorney work product doctrine. Finally, the availability of
automatic disclosure could have the unfortunate effect of burdening the courts with
unnecessary litigation as lawsuits are commenced on speculative grounds that might not
sustain discovery under current rules. This unfortunate impact could be exacerbated by the
proposed changes to Rule 11 which could tempt parties into pleading with particularity
wholly speculative factual assertions.^

"Congressional power to regulate practice and procedure in federal courts has
been acknowledged by the Supreme ODurt since the early days of the Republic and is now
assumed without question by the courts."^ Under the Rules Enabling Act,* Congress is
possessed of the authority, as well as the last opportun-ty, to decide whether proposed
amendments to the Federal Rules of Civil Procedure will go into effect, and if so, what their



' The considerations affecting proposed Rule 11 changes are discussed in comments
submitted by the American Insurance Association.

' See The Judicial Improvements Act of 1990, Report of the Senate Comm. on the
Judiciary, No. 416, 101st Cong., 2d Sess. 9 (1990) (quoting H.R. Rep. No. 422, 99th
Cong., 1st Sess. 5-7 (1985)).

* 28 U.S.C. § 2072.



116



content shall be.' Congressional intervention in the rulemaking process, however, has been
needed and exercised only on rare occasions. In particular, congressional action is
contemplated and has been taken when, as now, the Judicial Conference proposes far-
reaching policy changes that would fundamentally alter the civil justice system in a
potentially harmful fashion or that conflict with a congressional mandate.*

The near universal opposition to engrafting disclosure onto a debilitated
discovery process has stressed that disclosure would fundamentally and deleteriously alter
basic policies that underpin our civil justice system, and that it would result in significant new
obligations, costs, delays, and abuses that would potentially conflict with Congress' own plans
for civil justice reform. Therefore, congressional intervention under the Rules Enabling Act
is needed to strike disclosure from the proposed amendments to the rules governing
discovery in the federal courts. Indeed, striking only the disclosure amendment in new Rule
26(a)(1) would be the least intrusive action Congress could take while still fulfilling its
oversight obligation. The balance of the proposed amendments to the rules governing
discovery should be permitted to take effect as proposed on December 1, 1993.^ As
former Chief Justice Warren Burger once remarked about the rulemaking process,
"[Rulemaking] is a joint enterprise, and while Congress has rendered us the compliment of



' See, e^ Hanna v. Plummer. 380 U.S. 460, 471-72 (1965); Sibbach v. Wilson &
Co.. 312 U.S. 1, 15 (1941); Wavman v. Southard. 23 U.S. (10 Wheat.) 1, 42 (1825); see
also S. Rep. No. 101-416, supra note 3, (quoting H.R. Rep. No. 422, 99th Cong., 1st Sess.
5-7 (1985)); Winifred R. Brown, Federal Judicial Center, Federal Rulemaking: Problems
and Possibilities 94 (June 1981).

* Brown, supra note 5, at 94.

' As previously noted, these comments do not address proposed changes to Rule 11.



117



general approval in the past, it does not mean that the Congress should accept blindly or on
faith whatever we submit."'

I. THE CONTROVERSY SURROUNDING MANDATORY PRE-DISCOVERY
DISCLOSURE SIGNALS THE NEED FOR SUBSTANTIVE CONGRESSIONAL
OVERSIGHT OF THE PROPOSED AMENDMENT AS AUTHORIZED BY THE
RULES ENABLING ACT.

The proposed mandatory, pre-discovery disclosure amendment engendered

vigorous debate and controversy within and without the legal community while moving

through the rules amendment process.' Described by even its proponents as "radical",'"

the controversy surrounding the disclosure process, and the near universal opposition to it

from bench and bar were so great that at one point the Advisory Committee on Rules of

Practice and Procedure decided to withdraw disclosure from the proposed amendments



* Hearings on Proposed Rules of Evidence Before the Subcomm. on Criminal
Justice of the House Comm. on the Judiciary-Supplement. 93d Cong., 1st Sess. 8-9
(1973), cited in. Note, Separation of Powers and the Federal Rules of Evidence. 26
Hastings L. J. 1059, 1074 n.l66 (1975).

* Of the roughly 264 written comments regarding disclosure that were submitted to
the Judicial Conference Committees during the public comment period, 25 1 comments
were negative. 70 individuals appeared at the two public hearings to testify against
disclosure on behalf of a broad spectrum of businesses, bar associations, and public
interest groups. See Appendix B for summary of comments in opposition to Rule
26(a)(1) disclosure; see Aj.pendix C for a summary of organizations and individuals who
submitted comments to the Rules Committee.

" Linda Mullenix, Hope Over Experience: Mandatory Informal Discovery and the
Politics of Rulemaking . 69 N.C. L. Rev. 795, 807 (1991) (citing cover memorandum from
Professor Paul Carrington, Office of the Reporter, Advisory Committee on Civil Rules to
the Standing Committee on Rules of Practice and Procedure of the Judicial Conference
of the United States (Feb. 22, 1990).



118



altogether.** Concerned several months later that withdrawal would unduly delay needed
discovery reforms, the Committee opted to reinstate disclosure in modified form.'* The
modifications attempted to respond to the overriding complaint voiced by opponents that
the standard for disclosure was unreasonably vague, particularly in light of notice
pleading." However, the ultimate version of disclosure that emerged as proposed Rule
26(a)(1) was a slightly improved reformulation of a fundamentally flawed and unworkable
concept.

Following approval by the Judicial Conference, the proposed amendments
were considered by the Supreme Court prior to their presentation to Congress. Normally
silent as to proposed rules amendments, the Supreme Court, through the Chief Justice's
transmittal letter, expressly stated that the Court had assured itself only that proper
procedures were followed during the rule promulgation process, and that Congress should
not "necessarily" interpret the Court's action to mean that "the Court itself would have
proposed these amendments in the form submitted."'* Indeed, Justice White, writing in



" Ann Pelham, Judges Make Quite A Discovery: Litigators Erupt. Kill Plan To
Reform Federal Civil Rule. Legal Times, Mar. 16, 1992, at 1.

" Aim Pelham, Panel Flips. OKs Discovery Reform. Legal Times, Apr. 20, 1992, at
6; see also April 8, 1992 Memorandum of Honorable Ralph K. Winter, United States
Court of Appeals, Second Circuit, to Honorable Sam C. Pointer, Jr., Regarding Recon-
sideration of Disclosure.

" See April 8, 1992 Memorandum of Honorable R.*lph K. Winter, supra note 12, at
3-4.

" April 22, 1993 Letter From Chief Justice William H. Rehnquist to Speaker of the
House of Representatives Thomas S. Foley transmitting proposed amendments to the
Federal Rules of Civil Procedure, reprinted in Amendments to the Federal Rules of Civil
Procedure and Forms. Communication from the Chief Justice of the United States

(continued...)



119

a separate statement, stressed the position that "it would be a mistake for the bench, the bar,
or the Congress to assume that we are duplicating the function performed by the standing
committee or the Judicial Conference with respect to changes in the various rules . . ..""

Three justices, Scalia, Souter, and Thomas, dissented from promulgation of the
discovery amendments. They branded disclosure as an "extreme, costly, and essentially
untested" departure from the norm that would undermine the adversary system and place
an intolerable burden on lawyers' ethical duties, a result that is particularly objectionable
because disclosure was "recommended in the face of nearly universal criticism from every
conceivable sector of our judicial system.""

Ultimate authority over the civil rules process rests now, as it always has, with
Congress. As early as 1825, Chief Justice Marshall clarified that the authority of the courts
to regulate practice and procedure existed because of a delegation of authority from
Congress." The Supreme Court has acknowledged and reiterated this fact in modern



" (...continued)
Transmitted Amendments to the Federal Rules of Civil Procedure and Forms. Pursuant
to 28 U.S.C. 2072. House Doc. No. 103-74, 103rd Cong., 1st Sess. (April 22, 1993) (GPO
Doc. # 67-104)(hereinafter "Supreme Court Transmittal Reprint").

" Statement of Justice White, accompanying Order and Memorandum Transmitting
Amendments To The Federal Rules of Civil Procedure, April 22, 1993, at 6, reprinted in
Supreme Court Transmittal Reprint, supra note 14, at 98-103.

" Dissenting Statement of Justices Scalia, Souter, and Thomas accompanying Order
and Memorandum Transmitting Amendments to the Federal Rules of Civil Procedure,
April 22, 1993, reprinted in Supreme Court Transmittal Reprint, supra note 14, at 104-
110.

" "Congress has expressly enabled the Courts to regulate their practice, by other
laws." Wavman v. Southard. 23 U.S. (10 Wheat.) at 42.



120

times." Moreover, when Congress made the current delegation of authority to the judicial
branch with the 1934 adoption of the Rules Enabling Act, "theories of exclusive judicial
power were not accepted with respect to national rulemaking. On the contrary, the language
of the enabling act reflected the dominant view that the power belongs to Congress.""

Although Congress has intervened in the rulemaking process sparingly, those
interventions have come in recent years. For example, in 1973, Congress delayed
implementation of the Federal Rules of Evidence to revise the proposed amendments to the
rules regarding privilege.^ In 1974, Congress severed a number of controversial rules of
criminal procedure, allowing only the balance of the proposed amendments to become
effective as proposed." In 1976, Congress deferred implementation of proposed habeas
corpus amendments." Congress modified amendments to the rules of criminal procedure



" See Sibbach v. Wilson & Co.. 312 U.S. at 15; Hanna v. Plummer . 380 U.S. at 471-
72.

" Brown, supra note 5, at 38-39. The early legislative history of congressional efforts
to enact the Rules Enabling Act provides insight into Congress' views.

[T]he bill proposed will not deprive Congress of the power, if an occasion
should arise, to regulate court practice, for it is not predicated upon the
theory that the courts have inherent power to make rules of practice
beyond the power of Congress to amend or repeal. On the contrary.
Congress may revise the rules made by the Supreme Court, or by legisla-
tion may modify or entirely withdraw the delegation of power to that body.
Report of the Comm. on the Judiciary, Authorizing Supreme C ourt to Make and Publish
Rules in Common-Law Actions 7, S. Rep. No. 69-1174, 69th Cong., 1st Sess. (1926).

*" See Pub. L. No. 93-12, 87 Stat. 9 (1973); Pub. L. No. 93-595 (1975) (adopting
modified rules of evidence).

^ Pub. L. No. 93-361, 88 Stat. 397 (1974).

" Pub. L. No. 94-349, 90 Stat. 822 (1976) (deferring implementation of habeas
corpus amendments).



121



in 1979 to ensure that the new rules were consistent with amendments Congress was making
to the criminal code at that same time." In 1982 Congress withheld approval of proposed
amendments to Federal Rule of Civil Procedure 4," and subsequently adopted its own
amended version of Rule 4." Congress also made technical amendments to the
bankruptcy rules in 1983," and the criminal rules in 1986 and 1988."

In some cases Congress has modified federal practice and procedure of its own
initiative, recognizing that "Congress' power to enact rules of procedure is limited only by
the Constitution, and not by the Rules Enabling Act, . . .."" The most recent and far-
reaching example is the Civil Justice Reform Act, which calls for broad experimentation with
court practice and procedure by federal district courts in order to identify means to decrease
costs and delay in federal courts.*' Congress also exercised its procedural authority when
it enacted the Speedy Trial Act to ensure prompt prosecution of criminal cases in federal



" Pub. L. No. 96-42, 93 Stat. 326 (1979) (delaying implementation of criminal rules
to allow modifications consistent with pending legislation).



" Pub. L. No. 97-227, 96 Stat. 246 (1982).
» Pub. L. No. 97-462, 96 Stat. 2527 (1983).



'^ Pub. L. No. 98-91, 97 Stat. 607 (1983) (amending bankruptcy rules).

" See, e^ Pub. L. No. 99-570, 100 Stat. 3207-8 (1986) (amending criminal rules);
Pub. L. No. 99-646, 100 Stat. 3592 (1986) (amending criminal rules); Pub. K No. 100-690,
102 Stat. 4181 (1988) (amending criminal rules).

" S. Rep. 416, supra note 3, at 10.

» Civil Justice Reform Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089 (1990); see
also H. Rep. No. 733, 101st Cong., 2d Sess. (Sept. 21, 1990); S. Rep. No. 416, 101st
Cong., 2d Sess. (Aug. 3, 1990).



122

courts,'" and when it provided for consolidation of civil litigation from multiple federal
courts for pretrial purposes with passage of the multidistrict litigation statute.'* Conse-
quently, there is ample authority and precedent to supp>ort congressional intervention now.
It is important to note that congressional intervention in the rulemaking
process over the past twenty years has not denigrated the Rules Enabling Act process, and
has not diminished the reputation, the excellent work product, or the integrity of the
rulemaking committees of the Judicial Conference - nor should it be allowed to. The
members of the rules committees and their product reflect the hard work and dedication
that committee members bring to bear on the often difficult challenges that face them.
Congress has recognized that fact by targeting its interventions very narrowly, usually making
only one or two very specific amendments to the pending proposals instead of undertaking
wholesale revisions of the amendments in general. This minimally invasive approach is all
that is necessary and appropriate here - specifically, Congress need only excise Rule
26(a)(1) mandatory, pre-discovery disclosure relating to witnesses and documents and make
certain conforming amendments - the balance of the pending discovery amendments should
be approved and implemented as promulgated. That action would permit a number of other
somewhat less controversial discovery reforms to take effect December 1, 1993, including
imposition of a meet and confer requirement prior to discovery, presumptive limits on the
number of interrogatories and depositions, the exchange of expert reports, and other



** See 18 U.S.C. § 3161 (c)(1) (1988) (criminal defendant must be tried within 70
days from filing of information or indictment, or from appearance before court).

'' See 28 U.S.C. § 1407 (1988) (permitting consolidation of multiple lawsuits under
the authority of one federal court for unified proceedings in certain lawsuits).



123



significant changes. In addition, striking only section 26(a)(1) preserves new 26(a)(2) and
(3), which create a new disclosure provision related to expert witnesses and their testimony,
and a disclosure obligation related to trial witnesses and materials.

A study of the federal courts' rulemaking process, conducted by the Federal
Judicial Center in 1980, indicates that it is expected that Congress will hold hearings and
conduct significant oversight when a particular proposal incites major pubUc controversy.^^
The study also indicated that the judicial branch recognizes that congressional review is
particularly appropriate when sharp policy changes are involved in the proposed rules
amendments." Both of these elements are present in the current situation, and in light
of the judicial branch's stated expectations, intervention by Congress should not be perceived
as usurping judicial authority.

The proposed disclosure process has ehcited unprecedented public outcry from
litigants of every stripe. Moreover, it presages a profound change in a basic policy
underpinning the American civil justice system by mandating a process that is non-
adversarial and in which the attorney's traditional obligation to the client is transformed into
a greater obligation to the opponent and the system itself. As such, significant congressional
interest and intervention with regard to the disclosure proposal would be expected, and in
the view of those submitting this statement, it is imperative.



^* Brown, supra note 5 at 53.
" Id. at 94.



81-258 0-94-5



124



n. MANDATORY, PRE-DISCOVERY DISCLOSURE

SHOULD BE STRICKEN FROM THE PENfPING AMENDMENTS .

Mandatory, pre-discovery disclosure can be challenged on both practical and

policy grounds. It is an untried, unworkable concept, particularly in complex litigation.

Notwithstanding calls from the bench and bar for greater specificity in the disclosure

obligation, its revised, and slightly improved formulation still includes ambiguities with which

litigants will find it difficult to comply, and which courts will be required to resolve. Thus,

rather than solving discovery abuse, disclosure simply adds another complication on top of

an already troubled process. In many cases disclosure will require expensive pretrial activity