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

where none would otherwise be appropriate or required. Disclosure is not supported by any

empirical study of the discovery process, as numerous commentators have criticized.** It

is at odds with the adversary system, the attorney-client relationship, and the work product

doctrine. According to some, disclosure will "encourage the use of fact pleading," and "will

[create] pressure to amend Rule 8(a)(2) to do away with notice pleading.""

For all these reasons, disclosure will cause far more discovery problems than

it has the potential to solve. Indeed, if disclosure is interpreted with anything less than strict

adherence to its literal text and the accompanying Committee Notes, particularly under the

rapid-fire conditions that exist in discovery, it becomes far more likely to trigger the dire

consequences that many have predicted.



^ See MuUenix, supra note 10.

" See Sherman L. Cohn, Notice Pleading: End of A 55-Year Experiment?.
American Inns of Court Federal Practice Digest, April 1993, 17-18.



on
aU



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A. An Ovei^helming Majority Opposes Mandatory. Pre-discoverv Disclosure .

The strength and depth of the opposition to mandatory, pre-discovery
disclosure cannot be overestimated. Ninety-five percent of the written public comments
disclosure submitted to the Committee on Rules of Practice and Procedure, and ahnost
of the public testimony at the Committee hearings in Los Angeles and Atlanta in November
of 1991 and February of 1992 were in opposition to disclosure as a concept and in practice.
The opposition came from all segments of the legal community, including sitting federal
judges, academics, large and small businesses, trade associations, the defense bar, consumer
groups, the plaintiffs' bar, bar association groups, and individual practitioners. The level of
opposition should be of great concern because successful implementation of disclosure in the
federal courts will depend, in large pairt, on the commitment and good will of those litigants
and counsel who are required to use it.

B. Mandatory, Pre-discovery Disclosure Will Increase Motion
Practice And Satellite Litigation, Promote Overdisclosure,
And Thereby Increase Discovery Cost. Delay, and Abuse.

Instead of decreasing discovery cost, delay, and abuse, mandatory, pre-
discovery disclosure is far more likely to exacerbate them. Because of uncertainty over the
precise meaning of the disclosure standard, which includes the frequently litigated term
"relevant" and the previously unknown phrase "set forth with particularity in the pleadings,"
courts may be inundated with motions to define these terms with greater certainty or to
decide whether they have been satisfied in a particular case. Other motions are likely to be
urged under Rule 12(e) for more definite statements of the facts in the complaint or the
answer. The likelihood that motion practice will increase is great because of the severe



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sanctions that could attach under Rule 37 - including default judgment - if the disclosure
obligation is not satisfactorily met. The severity of the sanctions, in turn, may promote more
satellite litigation and appeals as parties attempt to protect themselves as best they can from
the harsh appUcation of an uncertain new process.

In order to avoid sanctions and satisfy the new rule, parties are likely to
engage in overdisclosure, giving the disclosure standard the broadest feasible interpretation.
This not only results in unnecessary expense for the disclosing party, but it also wastes the
resources of the party receiving the disclosure, who must take the trouble to sort through
and analyze the material.

The ambiguity of the new disclosure standard creates an amorphous new risk

for litigants. The risk exists regardless of whether a litigant discloses too much or too little,

and it makes court involvement in resolving disclosure conflicts highly probable. Litigation

cost, delay, and abuse is likely to increase if mandatory, pre-discovery disclosure becomes

the rule.

C. Mandatory, Pre-discovery Disclosure May

Be A Remedy, If At All, Only In Cases Where
Discovery Is Not A Problem Under Current Rules .

A just released study, conducted under the auspices of the National Center for

State Courts ("NCSC), examined discovery in state trial courts.^ The NCSC study can be



^ The major flaws in the premises behind the disclosure proposal are shown in
sharp relief when it is compared to an extensive study recently conducted of discovery in
the state court system, published under the auspices of the National Center for State
Courts. See Susan Keilitz, Roger Hanson & Henry W.K. Daley, Is Civil Discovery in
State Trial Courts Out of Control? (1993) (manuscript, publication pending) ("State
Court Study I"); Susan Keilitz, Roger Hanson & Richard Semiatin, Attorneys' Views of
Civil Discovery (1993) (manuscript, publication pending) ("State Court Study 11"). Earlier

(continued...)



127



understood to have identified three different levels of discovery activity in the cases
examined. In one category of cases amounting to 42% of the 2,190 state cases reviewed,
there was no discovery at all." Consequently, there were no discovery costs or delays in
these cases. In a second category, very little discovery was undertaken, and discovery
worked relatively well. In the third category, involving complex cases such as product
liability litigation, significant discovery was undertaken and significant discovery problems
were encountered. Analyzing the likely effect of mandatory, pre-discovery disclosure on
these three categories of cases, it can be concluded that at best, disclosure is potentially
workable only in the second category of cases where discovery already works well. Yet
disclosure would be unnecessary in those cases because there are no discovery problems to
solve.

The proposed mandatory, pre-discovery disclosure process makes no allowance
for those situations where no discovery is necessary or appropriate. Instead, disclosure
would force parties, even in the simplest of cases, to undergo the effort and to incur the
expense of making initial disclosures, unless they affirmatively stipulate around the disclosure
obligation or the court so orders. The Committee Notes accompanying the proposed
amendment indicate that disclosure, in essence, was intended to be "the functional
equivalent" of standing interrogatories "from the court," and as such would not be unduly
burdensome. However, as the recent NCSC study shows, in a significant number of cases



* (...continued)
studies of federal courts support extrapolation of the state figures to the federal courts.
See State Court Study I, supra, citing Connolly et aL 1978.



37



See generally State Court Study I, supra note 36 at 8.



128



no interrogatories are exchanged. Consequently, in those cases where discovery normally
would not take place at all, disclosure is a potential solution in search of a problem. More
important in those cases, however, it is highly likely that disclosure will have precisely the
opfKJsite effect of that which was intended; that is, disclosure will increase cost, delay, and
abuse instead of reducing them.

Just as clearly, disclosure will impose inordinate costs and delays in complex
litigation. Complex litigation often starts with multiple parties, vaguely outlined claims and
defenses, sketchy facts, and above all a great deal of uncertainty. Common sense dictates
that it generally, if not always, will not be possible in complex litigation to determine what
the disclosure obligation is and to whom that obligation runs. Witnesses will be unknown
early in the litigation. Hundreds of thousands, or even millions, of documents may or may
not be at issue depending on what the facts are and who the parties might be.

Yet under the proposed mandatory, pre-discovery disclosure process, litigants
could be charged with the responsibility of knowing early on not only what is relevant in
terms of witnesses and documents regarding their own case, but also understanding their
opponent's position well enough to surmise what would be relevant and necessary to the
opponent's case. The obligation to decipher an opponent's case early on subjects a litigant
to a real risk of significant sanctions for failing to reach the same assessment of what was
relevant for disclosure purposes as the sanctions judge might reach in hindsight.

Since it is not likely that a process such as disclosure could resolve the
discovery problems that are sui generis to complex litigation, and since disclosure certainly
will not improve cases where little or no discovery takes place, the potential utility of the
proposed disclosure process must be regarded as very limited. At best, disclosure would only



129



have a chance of being successful in those cases where it is not needed. In the face of the
myriad problems and controversies surrounding disclosure, and its minimal potential for
proving effective even if it is implemented, the most appropriate course of action at the
present time is to strike the mandatory, pre-discovery disclosure proposal from the pending
amendments.

D. Disclosure Is Inconsistent With the Adversary System and the
Work Product Doctrine.

[A]n advocate, in the discharge of his duty, knows but one person in ail the world,
and that person is his client To save that client by all means and expedients, and
at all hazards and costs to other persons, and, among them, to himself, is his first and
only duty . . . .^

The adversary nature of civil litigation in this country pervades ail aspects of
the civil justice system, including discovery. Under present discovery rules, a litigant is
responsible for identifying and seeking that information which might be relevant to his case,
and an opponent has no obligation to turn over any information unless and until it has been
requested. Mandatory, pre-discovery disclosure turns this tradition on its head. It requires
counsel to identify that information which might be relevant to facts pleaded in his
opponent's complaint or answer, and to voluntarily provide that information to the opponent
before it is requested.

Although attorneys are ofGcers of the court, their duty to advance the client's
interests is at least equally important. The proposed mandatory, pre-discovery disclosure
process would be the first instance in the civil litigation context where the procedural rules
would impose an ongoing, affirmative obligation on the attorney to initiate disclosure to an



" Trial of Queen Caroline 8 (J. Nightengale ed. 1821) quoted in Frankel, The
Search for Truth: An Umpireal View. 123 U. Pa. L. Rev. 1031, 1036 (1975).



130



opponent or the court of information potentially adverse to the client's interests. This is
fundamentally unfair to the client, and places the attorney in a particularly problematic
position. Moreover, it is a dramatic departure from the adversarial model under which each
side must harness its own factual and legal weapons so that the truth wiU ultimately emerge
from the clash of competing f>ositions.

Before the federal rules diminish the adversarial nature of discovery in favor
of disclosure, more deliberate study and debate are called for. Such a departure may have
systemic implications far beyond its impact on discovery. In fact, it is difficult to rationalize
departure from such a fundamental tenet of the civil justice system in favor of an untested
process, such as disclosure, when there is no assurance or even evidence that disclosure will
eliminate or reduce discovery problems.

Disclosure also is likely to undermine the attorney work product doctrine.
Each step of the act of making a judgment as to what might be "relevant" to facts pleaded
with "particularity" would be classic attorney work product. Forcing the attorney to then turn
that information over to an opponent will inevitably reveal the mental impressions and legal
judgments of the attorney making the disclosure. In some instances disclosure may reveal
information about the attorney's theory of his own client's case, or may reveal a line of
factual inquiry or legal reasoning that the opponent never would have considered on his
own. The work product doctrine was intended to protect and promote inventiveness,
dOigence, and excellence among attorneys. The disclosure process is antithetical to these
goals.






131



E. Disclosure Undermines The Attorney-Client Privilege and

Injects Ethical Dilemmas Into The Attorney-Client Relationship.

The attorney-client privilege exists to encourage clients to fully disclose the
facts to counsel. The proposed disclosure amendment, however, could damage attorney-
client relationships because it requires counsel to disclose to the client's adversary what
counsel has learned during his investigation, good or bad, about the client's case. Indeed,
the more thorough counsel is and the more information he uncovers, the greater the
potential disclosure he must make ~ perhaps contrary to his client's interest.

Qients do not and should not expect their own attorney to vigorously search
through their files, sometimes finding negative or self-critical information, only to dutifully -
- and without a request - turn it over to the client's adversary in litigation. Yet that is what
disclosure would require, contrary to the deeply ingrained tradition whereby the attorney
protects the client's confidences and the law nurtures the relationship between attorney and
client in order to promote candor and trust.

The law traditionally has protected this relationship even at the expense of
potentially relevant information which is either kept completely confidential under the
attorney-client privilege, or may be used in the litigation subject to stringent protective
orders or a court-ordered seal. Although the proposed disclosure process does not modify
the attorney-client privilege directly, it will undermine essential aspects of the relationship
that the privilege was crr^ted to protect and unduly complicate protecting the confidentiality
of such information in litigation. Since there is no evidence that disclosure will have a
beneficial effect on the pretrial process, and every indication that it will seriously



132



compromise attorney-client relations, mandatory, pre-discovery disclosure should not be
allowed to go into effect

m. THE PROPOSED DISCLOSURE AMENDMENT IS PREMATURE

IN LIGHT OF THE CIVIL JUSTICE REFORM ACT EXPERIMENTS .

When Congress enacted the Civil Justice Reform Act ("CJRA"), it anticipated

that the many experimental plans devised by the participating federal district courts would

serve as examples of possible reforms for discovery while at the same time yielding empirical

data, baised on actual practice, regarding which reforms were effective." According to a

report issued by the Judicial Conference, twenty-one of the 34 "early implementation" federal

district courts participating in the experiment have opted to implement pre-discovery

disclosure procedures in one of several different forms.*" Thus, delaying implementation

of disclosure until these experimental plans have produced data as to whether disclosure is

even a workable concept would have been an invaluable safeguard of the integrity of the

civil justice reform process. In fact. Judge Sam C. Pointer, Jr., Chairman of the Advisory

Committee on Civil Rules, recognized the potential value of adopting a wait-and-see attitude

when the disclosure amendment initially was deferred, publicly stating that "[i]t makes more



* See S. Rep. No. 416, 101st Cong., 2d Sess. 2 (i990); 136 Cong. Rec. S17575 (daUy
cd.) Oct. 27, 1990 (Remarks of Sen. Biden).

*• See Judicial Conference of the United States, Civil Justice Reform Act Report:
Development and Implementation of Plans By Early Implementation Districts and Pilot
Courts 12 (June 1, 1992) ("CJRA Report"). At the time the Advisory Committee first
adopted the disclosure concept, it had been briefly in effect in the local rules of only four
district courts. See Mullenix, supra note 10, at 798 n.4.



133



sense to get the benefit of that [CJRA] experience before moving ahead."*' Mandating
disclosure nationwide now, as a permanent amendment to the Federal Rules of Civil
Procedure, unduly interferes with the experimentation process now underway in the federal
district courts.

TTie focus on disclosure as the primary means of achieving meaningful
discovery reform inappropriately obscures the fact that many other reforms are being
considered under the CJRA experimental plans, and other potentially effective discovery
reforms are set forth by the Judicial Conference in the pending discovery rules amendments.
These latter reforms, in and of themselves, could prove effective at reducing discovery costs
and delay. As such, they should be allowed to take effect so that their efficacy can be
measured and assessed prior to implementation of a radical discovery reform such as
disclosure. If, after experience with the Judicial Conference's discovery reforms other than
disclosure, discovery abuse and delay are not diminished, then the best variation of the
CJRA experimental disclosure plans could be implemented on a trial basis to test the
feasibility of disclosure on a national scale.



*^ Ann Pelham, Irate Litigators Abort Federal Discovery Reforms. American Lawyer
News Service, Mar. 23, 1992, reprinted in The Connecticut Law Tribune, page 14
(quoting Judge Sam Pointer, Jr.); see also April 8, 1992 Memorandum of Honorable
Ralph K. Winter, supra note 12, at 1-2 ("Most of us continue to believe that a final
[disclosure] proposal to be enacted should await experimentation under the Biden Bill.").



134



IV. THE PROPOSED DISCOVERY AMENDMENTS OTHER
THAN RULE 26(a)(1) SHOULD BE APPROVED
AND ALLOWED TO GO INTO EFFECT ON SCHEDULE .

The opposition to mandatory, pre-discovery disclosure vastly overwhelmed the
opposition to the remainder of the discovery amendments to such a degree that it would be
a responsible exercise of congressional oversight to permit the other discovery reforms to
proceed to implementation while withdrawing Rule 26(a)(1) disclosure. Although many
concerns were expressed about almost aU of the proposed amendments to discovery, aU but
one concern, the proposed mandatory, pre-discovery disclosure process, can be put aside in
the spirit of cooperation and deference to the rulemaking process as established in the Rules
Enabling Act. The proposed disclosure process, however, remains so far beyond the pale
that it is not possible to abandon objections to it due to the deleterious impact it is likely to
have on the civil justice system, and in order, in effect, to protect its opponents' rights of
appeal.

Congress should strike Rule 26(a)(1) and allow the balance of the proposed
discovery amendments to become effective on December 1, 1993. Indeed, Congress has
used this very technique in the past, striking only the objectionable rule or portion of a rule,
and allowing the balance of the proposed amendments to go into effect as originally
intended. An example of such action occurred in 1974, when Congress severed a number
of controversial rules of criminal procedure, aUowing only the balance of the proposed
amendments to become effective as proposed.**



42



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



135



To withhold the balance of the discovery amendments would unnecessarily
denigrate the dedicated work of the Judicial Conference and its committees. Moreover, it
would arbitrarily delay implementation of numerous potentially meaningful discovery reform
measures. Indeed, although the criticism expressed herein toward disclosure is significant
and far-reaching, it in no way should be interpreted as a criticism of the dedicated jurists,
academics, and practitioners who serve as part of the Judicial Conference committees, nor
as a disparagement of the energy and scholarship behind their efforts. As such, deleting
Rule 26-(a)(l) is an appropriately limited action that Congress can take while still faithfully
carrying out its oversight function.

CONCLUSION

Mandatory, pre-discovery disclosure undoubtedly would have a profound effect
on the discovery process and on the adversarial nature of the civil justice system as a whole.
What is unknown, however, is whether that effect would be curative, as its proponents hope,
or whether it would exacerbate existing costs and delays while causing new problems of its
own, as identified herein. Almost all of those who have evaluated and commented on the
disclosure proposal strongly oppose it. Further, there is no credible evidence to support the
notion that mandatory, pre-discovery disclosure will reduce discovery cost, delay, and abuse.

At a minimum then, mandatory, pre-discovery disclosure should not be
implemented nationwide until there is some basis in fact to demonstrate that it is necessary
and that it has a realistic potential to cut discovery costs, reduce delay, and minimize abuse.
If such information is to ever surface, it may do so once the results of the CJRA experiments



136

are avjiilable. It would therefore be prudent to wait at least until that time before taking
any action to implement disclosure.

However, there is reason to believe that mandatory, pre-discovery disclosure
could not work in the majority of cases under any circumstances. It deviates too much from
the adversary model on which the American system is premised. It is urmecessary in those
cases where discovery is not used or is used sparingly - a sizable portion of the total
caseload. Disclosure is too amorphous to accommodate the needs of complex litigation
without provoking significant satellite activity, another counter-productive result. No
tinkering changes and no amount of testing can overcome these substantial hurdles. In the
final analysis then, disclosure should be rejected as a well-intentioned, but unworkable
concept that will not fit into the federal civil justice system. Congress should strike
mandatory, pre-discovery disclosure from the proposed discovery amendments to the Federal
Rules of Civil Procedure and allow the balance of the discovery amendments to take effect.



137



APPENDIX A



TEXT OF PROPOSED AMENDMENT TO RULE 26fA)fn

Rule 26. General Provisions Governing Discovery: Duty of Disclosure

(a) Required Disclosures: Methods to Discover Additional Matter.

(1) Initial Disclosures. Except to the extent otherwise stipulated or directed by
order or local rule, a party shall, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each
individual likely to have discoverable information relevant to disputed facts alleged with particularity
in the pleadings, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents,
data compilations, and tangible things in the possession, custody, or control of the party that are
relevant to disputed facts alleged with particularity in the pleadings;

(C) a computation of any category of damages claimed by the disclosing
party, making available for inspection and copying as under Rule 34 the documents or other
evidentiary material, not privileged or protected from disclosure, on which such computation is based,
including materials bearing on the nature and extent of injuries suffered; and

(D) for inspection and copying as under Rule 34 any insurance agreement
under which any person carrying on an insurance business may be liable to satisfy part or all of a
judgment which may be entered in the action or to indemnify or reimburse for payments made to
satisfy the judgment

Unless otherwise stipulated or directed by the court, these disclosures shall be made
at or within 10 days after the meeting of the parties under subdivision (f). A parfy shall make its
initial disclosures based on the information then reasonably available to it and is not excused from
making its disclosures because it has not fully completed its investigation of the case or because it
challenges the sufficiency of another party's disclosures or because another party has not made its
disclosures.

(2) Disclosure of Expert Testimony.

• • • • •



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APPENDIX B
SUMMARY OF GROUNDS OF COMMENTS OPPOSING RULE 26 DISCLOSURE

(comments available as of June 1, 1993)

A total of 264 comments were reviewed to prepare this summary. They addressed the proposed
amendment to Federal Rule of Civil Procedure 26 that would require disclosure of information in
advance of discovery. Over ninety-five percent of the comments weie in opposition to the proposed