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United States. Congress. House. Committee on the J.

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

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Appendix 4.— Statement of Messrs. Archibald, Fox, Hangley,
KiEVE, AND Weiner, June 16, 1993



•DISCLOSURE" SHOLTJD BE DELETED FHOM
PROPOSED rule 26(a)(1)



We are practicing trial lawyers who have a longstanding interest in making
litigation less cosily and time-consuming, for our clients as well as the public in general. We
support most of the proposed amendments to the Federal Rules of Civil Procedure.

For the reasons set forth below, however, we urge Congress to use its inherent and
statutory powers to disapprove the proposed "disclosure" system in the proposed amendments
to the Federal Rules of Civil Procedure transmitted to Congress by the Chief Justice on April
22, 1993 because:

1. The "disclosure" system was, and is, opposed by virtually every segment of
the bar and the public, including plaindffs' groups, the defense bar, the public interest bar,
the federal government and numerous federal judges and law professors.

2. The "disclosure" system represents a fundamental change in our traditional
and time-tested adversary system of justice, requiring client and counsel to try to fathom and
then turn over what information and documents the other side might believe it should have in
pressing its case.



198



3. As Justice Scalia (joined by Justices Souter and Thomas) stressed in his
dissent from the Court's adoption of the "disclosure" system:

By placing on lawyers 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 exer-
cise of considerable judgment — the new [disclosure] Rule would place intolerable
strain upon lawyers' ethical duty to represent their clients and not to assist the other
side. Requiring a lawyer 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.

4. The Chief Justice's transmittal letter to Congress pointed out that, "[wjhile
the Court is satisfied that the required procedures have been observed, this transmittal does
not necessarily indicate that the Court itself would have proposed these amendments in the
form submittal." Justice White's concurrence made essentially the same point.

5. The adoption of "disclosure" across-the-board for all federal district courts is
directly contrary to the letter and spirit of the Civil Justice Reform Act of 1990 ("CJRA"),
which calls for each district court to determine, on a trial basis, what specific reforms —
including if it wishes some model of a disclosure system — might best work for that
particular district to reduce costs and delay in civil cases. A large number of district courts
have declined to adopt a "disclosure" system in their CJRA plans because they believe it will
add costs and delay, rather than reduce them.

6. At a minimum, until the results of these localized experiments are in, it
would be premature — not to mention counterproductive — to adopt disclosure, much less a
particular form of disclosure, for the entire federal district court system.



Background

On April 22, 1993 the Supreme Court adopted a number of changes to the
Federal Rules of Civil Procedure. They will go into effect on December 1, 1993 unless
Congress acts to overturn them. The most controversial, and we believe objectionable,
change is the adoption of mandatory "disclosure" requirements in the discovery rules.

As articulated in the proposed amendments, "disclosure" (1) subverts a lawyer's
ethical obligation to represent and advocate his or her client's interest, not that of the ad-
versary, (2) places an unduly complicated overlay on an already overburdened system and
(3) is contrary to the provisions and spirit of the Civil Justice Reform Act of 1990 that such



199



experiments are to be tested first in local district courts before they are adopted across-the-
board for every district court in the country.

The Present Discovery System ;

Under the present discovery system, if one party wants documents or
information from the other side, it is required to ask for it. The other side can then object
and, if the parties cannot agree, the court will decide what information or documents have to
be produced.

The key is that only the information or documents that are actually asked for
have to be produced. This gives the party being asked for them a fairly clear idea of what
the other side wants, and hence what it has to look for. Well-run courts have developed a
number of procedures to deal with the potential for abuse, including presumptive limits on
discovery. S^ generally Kieve, Discovery Reform: Mavbe the Best Solution Is No
Discovery At All . ABA Journal (Dec. 1991) (attached hereto at tab A).

The Proposed New "Disclosure" System ;

A radically different system will now apply under the new disclosure provisions
in amended Rule 26.

At the start of the case, each side will automatically be required to disclose to
the other side the following information and documents:

(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; [and]

(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 basea, including materials bearing on the nature and extent of
injuries suffered; ....

The revised rule provides that these disclosures must be made at the very
beginning of the lawsuit and that.



200



. la] party 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.

The theory is that, armed with this information, the parties will be in a better
position to evaluate the case for settlement or to determine what additional information they
need to prepare it for trial.

"SuDDlementation" of "Disclosures" and Pleadings ;

The new rules also require a litigant to make further disclosures throughout the case
"at appropriate intervals,"

... if the party learns that in some material respect the information disclosed is
incomplete or incorrect and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in
writing.

There are sanctions — including the preclusion of any information or witness
not disclosed — for a failure to make the required disclosures or supplementation.

The panoply of other discovery devices — interrogatories, document requests,
requests for admission and depositions — are still available, although there are presumptive
limits on the number of interrogatories and depositions that can be taken without court order.
Traditional discovery caimot, however, be started until disclosure has taken place.

Thp F.volution of the "D Lsclosure" Concept;

Objections to the Tirst "d isclosure" proposal:

An earlier August 1991 version of the disclosure idea was circulated for public
comment by the Advisory Committee on Civil Rules. Virtually every segment of the pro-
fession opposed it: the plaintiffs' bar, the defense bar, public interest groups, the Justice
Department and a large number of able federal judges and law professors. The February 7,
1992 comments of the then-Chair of the ABA Section of Litigation, Theodore R. Tetzlaff
(attached hereto at tab B), were typical.

A major objection was that the standards for what had to be disclosed were too
vague, and would lead to more, not fewer, wars over discovery. What one side might view
as documents or names of potential witnesses that "are likely to bear significantly on any



201



claim or defense* is apt, particularly given the adversary system, to be substantially different
from what the other side would say is called for under this language.

And as the Tetzlaff comments pointed out, "there is a basic philosophical
problem posed by engrafting a disclosure system onto the body of an adversary system of
justice which is likely to reject it as fundamentally incompatible tissue."

There was also a procedural objection: various forms of disclosure were
already being adopted as experimental rules in several district courts under the Civil Justice
Reform Act of 1990. It did not make sense to adopt disclosure (much less any particular
kind of disclosure) before the results of these local court experiments had been assessed.

At first, the Advisory Committee heeded these objections and declined to adopt
any form of "disclosure." A month later, however, it changed its mind and approved a new
form of disclosure that had never been circulated for public comment.

A distinguished member of the Committee, Charles Alan Wright (who
dissented), pointed out that by sending the proposed amendments to the Court in the face of
strong opposition from virtually all segments of the bar, the Committee could "jeopardize the
continued existence of the court rule-making process." Justice White's concurrence in the
Supreme Court's adoption of the current proposed amendments echoes this concern.

Problems with the current proposal ;

The May 1992 revisions to the proposed amendments — the ones ultimately
adopted by the Judicial Conference and sent to the Supreme Court, which in turn has passed
them on to Congress — sought to address these problems, but actually made them worse.

Notice pleading no longer ap plies

The Federal Rules of Civil Procedure are stiU modeled on "notice pleading"
requiring (in Rule 8) only "a short and plain statement of the claim showing that the pleader
is entitled to relief." A plaintiff merely has to allege that one more defendants "negligently
drove or caused to be driven a motor vehicle against plaintiff . . . ." Form 10, Fed. R.
Civ. P.

The proposed "disclosure" version would require the parties to "disclose"
potential witnesses and documents with information "relevant to disputed facts alleged with
particularity in the pleadings."



202



As~the Advisory Committee notes candidly state, "[t]he greater the specificity
and clarity of the allegations in the pleadings, the more complete should be the listing of
potential witnesses and the types of documentary evidence. "

What this means is that notice pleading is now effectively a dead letter. If
counsel wants to discover whether the defendant in an insider trading case has ever kicked
his dog, he or she will simply allege that this is so (and, of course, evidences the defendant's
lack of good character) — and therefore will presumably be a proper subject for discovery.

What one side views as the issues is apt
to be fundamentally different from
what the other side thinks they are

What are materials that are "relevant to disputed facts alleged with particularity
in the pleadings' is still ultimately a subjective test. What one side may believe are the
"disputed" facts and issues will not necessarily be shared by the other. One party's "key"
documents may be viewed by the opposition as harassment and litigation blackmail. And, as
discussed below, trying to convince or work out with a client that certain documents are
encompassed within the other side's "particular alleged facts" creates a fundamental tension
between client and counsel. The present system, where each side asks the other for specific
documents, makes it clear what is or is not called for and does not place an attorney in the
extremely awkward position of, first, trying to figure out what the other side is really alleg-
ing and, second, convincing his or her own client that certain categories of materials must be
"disclosed" right off the bat at the beginning of the case.

"Disclosure" will require continual
updating — both of the pleadings and
of the "disclosures"



.H



The Advisory Committee notes also seem to contemplate a series of ongoing
amendments to the pleadings. Even if the initial pleadings do not call for information about
the defendant's dog-kicking proclivities, "as [a party's] investigation continues and as the
issues in the pleadings are clarified, it should supplement its disclosures as required by
subdivision [26](e)(l).' If one side does not think that what the other wants is framed by the
pleadings, all the other side has to do is to amend them and then insist on more "disclosure. "

This is hypeibole, but it illustrates tiie point: the new disclosure rules, although
designed in theory to reduce discovery costs, are very likely to lead to new and equally
expensive discovery, not to mention pleuling, battles.



203



There are fundamental ethical
problems with "disclosure"

For us, there is also the overriding ethical issue. Ours is an adversary, not an
inquisitorial, system. Counsel prepare their own cases as advocates. A lawyer should not
have to guess what documents, witnesses, etc., the other side might find "likely to bear . . .
on any claim or defense. " Each side should define for itself what specific materials it wants
the other to produce.

The disclosure concept inevitably places a barrier between client and counsel,
who is charged by the canons with vigorously representing the client's cause. Given the
possibility of heavy sanctions for failing to provide "disclosure," the uncertainty takes on
added importance. Instead of addressing particular categories of documents the other side
has asked for, each party and its counsel will now have to decide, at the beginning of the
case, the meaning of "likely to bear significantly on any claim or defense." The tension
between attorney and client is obvious.

As Justice Scalia Qoined by Justices Souter and Thomas) stressed in his dissent
(attached hereto at tab C) from the Court's adoption of the "disclosure" system:

By placing on lawyers 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 exer-
cise of considerable judgment — the new [disclosure] Rule would place intolerable
strain upon lawyers' ethical duty to represent their clients and not to assist the other
side. Requiring a lawyer 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.

The "disclosure" rules seek to
pretermit the experimentation called
for by Congress in the Civil Justice
Ref prm Act of 1 990

There is really no demonstrated need to adopt any form of disclosure. Under the
Civil Justice Reform Act of 1990, the district courts across the country arc already trying
numerous kinds of innovations to see whether they reduce costs and delay to litigUiits. Some
have adopted experimental "disclosure" systems very much like that proposed for Rule 26.
Others have concluded that "disclosure" is not appropriate. It does not make sense, and is
actually counterproductive, to impose one system of "disclosure" — particularly in the face
of overwhelming opposition from all segments of the bar and the public — while these
experiments are ongoing and have yet to be assessed.



204



We therefore respectfully urge Congress to exercise its statutory and inherent
powers to reject the proposed "disclosure" system set forth in proposed Federal Rule of Civil
Procedure 26(a)(1).

Respectfully submitted,



James K. Archibald
Lawrence J. Fox
William T. Hangley
Loren Kieve
David C. Weiner'



June 16, 1993



1C7«S«67



1



Mr. Archibald is a member of the Council of the 63,0(X)-member Section of Litigation
of the American Bar Association. Mr. Fox is the current nominee for Vice Chair of the
Section. Mr. Hangley is the co-chair of the Section's Federal Procedure Committee.
Mr. Kieve is the immediate past co-chair of the Federal Procedure Committee, as well
as an immediate past member of the ABA's Civil Justice Reform Cooiainating Commit-
tee; he is currently a member of the District of Columbia Federal District Court
Advisory Committee under the Civil Justice Reform Act. Mr. Weiner is the current
Vice Chair of the Litigation Section, as well as the Vice Chair of the Civil Justice
Reform Act Advisory Committee for the Northern District of Ohio. The views
expressed herein are their own, and do not necessarily represent those of the Litigation
Section's other members or the ABA.



205




Meform

BY LOREN KIEVE

there has been almost universal agreement that
discovery has become a nightmare. It has provoked
local rules limiting discovery, proposals by Vice
President Quayle's Council on Competitiveness, and
most recently proposals to amend the Federal Rules
of Civil Procedure themselves.
A federjd district judge, William Schwarzer,
who is also currently director of the Federal Judicial
Center, has written a thought-provoking article on
the subject entitled, "Slaying the Monsters of Cost
and Delay: Would Disclosure Be More Effective Than Discovery?"
in the December-January '91 issue of Judicature magazine.

Schwarzer's proposal, which legal columnist Stuart Taylor
has called a "hfeUne for [a] system drowning in discovery," calls for
mandatory disclosure — requiring both sides to a lawsuit to disclose
at the very beginning of a case any material that is "relevant" to
the issues.

The disclosure concept has most recently been embraced by
the Judicial Conference Advisory Committee on Civil Rules in its
August 1991 Preliminary Draft of proposed rule amendments (now
being circulated for comment).

In place of the term "relevant" the 1991 draft would require
the parties to disclose the names and identities of people,
documents, data compilations or tangible things that "are likely to
bear significantly on any claim or defense."

In sharp contrast to Judge Schwarzer's original proposal,
however, the draft would continue to allow the parties to use the
traditional discovery devices — although it would place not terribly
restrictive limits on their number and length (15 interrogatories
and 10 depositions, no more than six-hours long per side) — luiless
the parties otherwise agreed or the court directed for good cause.

Although superficially appealing, the disclosure concept is far
ft-om a lifeline. It may be more like taking a drowning victim out of
one river only to throw her into another.

If discovery is overwhelming litigation (as I and many others
believe), then the answer is not a mutated form of discovery — one
that requires each party immediately after a lawsuit is filed to
guess what documents, etc., the other side might find relevant or
that "bear significantly^ on the issues (or, to use Taylor's term, are
"damaging") and turn them over to the adversary. This simply



Lonn Kieve is a partner in the Washington, DC, office of Debevoise & Plimpton.



206



wouJd compound the problem by
adding confusion to an already over-
burdened system.

Our legal system is predicated
on the cunous notion that a lawyer
can file a lawsuit with only a bare
idea of what the case — much less
the tnal — will look like, and then
require the opposition and its law-
yers to go through the cumbersome,
expensive procedure of sifting
through its files to turn over a vast
array of material that is not merely
relevant but that may "lead to the
discovery" of relevant evidence.

I am in full agreement with
Judge Schwarzer's bottom line. The
current discovery process is a mon-
ster out of control. As Taylor so
aptly put it, discovery "devours mil-
lions of dollars and countless hours
of lawyers' time in cases that would
be better settled or tried with far
less ado."

The American Bar Association's
1990 Annual Meeting in Chicago
devoted a considerable amount of
lime to the problem of discovery.
Virtually everyone — lawyers, judges,
professors and clients — agreed that:

► Discovery has gotten seriously
out of hand:

► The Federal Rules of Civil
Procedure's promise of the "just,
speedy, and inexpensive determina-
tion of every action" has become, at
best, a hollow incantation and, at
worst, a cruel joke; and

► The vaunted benefits of dis-
covery have proven to be largely
illusory and not worth the toll they
take on litigants and the courts.

Some have suggested cynically
that lawyers have glommed onto
discovery because it is has become
the ideal way to rack up billable
hours — with legions of leveraged
associates reinventing new forms of
multipart interrogatories, and docu-
ment requests spewing forth from
word processors like the multi-
headed Hydra of mythology. As soon
as one discovery head is cut off, two
more appear in its place.

When the other side responds
in kind by launching its retaliatory
first, second and third waves, the
lawyers then can generate even
more billables by dispatching an-
other team to sift through every
nook and cranny of the client's files.
The object is to find the smoking
gun the other side just knows has to
be there.

Of course, all the while, both
sides have to fight about the scope of
discovery, privilege, protective or-
ders, the length land place) of depo-
sitions, and so on — generating even
mor«! revenue.



The truth is that the system
itself is the root evii. Like
Mount Everest, a lawyer uses
discovery "because it is there." It is
one of the tools (choose your own
metaphor — chain saw, axe) the rules
give us.

If you know your opponent has
this tool, and is gomg to use it, then
you risk 1) loss of the case: 2) a



Maybe the Best

Solution Is No

DisKOvery At All



malpractice suit; and 3) the wrath of
your client by not using discovery —
either aggressively or defensively.

The proposal to substitute dis-
closure for discovery hopes to do
away with this. It is certainly a step
in the right direction, but it does not
go far enough, and may actually
exacerbate the problem.

The theory behind disclosure is
that it will require the parties, at
the beginning of a case, to produce
all relevant materials and the names
of people who may know something
about it. The lawyers will then
know enough about the case to
settle, file a dispositive (or partially
dispositive) motion, or go to trial.

If disclosure actually stopped
there, it might do some good. But
current proposals allow for tradi-
tional discovery as well and also
contemplate, upon a showing of
good cause, even more depositions,
interrogatories and document re-
quests — the grist of the traditional
discovery mill.

(Given that nature abhors a
vacuum, the typical case undoubtedly
also will tend to include motions
alleging that there is good cause to
conduct additional discovery.)

The twin premises underlying
the disclosure model are that it will
require federal trial judges to take a
more active role in managing their
cases and substantially reduce dis-



covery battles. If a party is unsure of
what It should disclose, it will file a
motion to clarify its obligation, and
the judge will take charge.

This all but guarantees the
same kind (if not more) of the
motion practice that now permeates
our oldfangled discovery system —
but shifts it right up front.

Both sides (and their counsel)
undoubtedly will have very differ-
ent views of what the subject matter
of the case may be. One side's
substantial constitutional issues will
be another's firivolous blackmail.

That is why discc'ry rules
now require the requesting party to
identify the specific items or realms
of information it wants, and why
court intervention is often required
to decide, in concrete terms, what
kinds of documents have to be
searched for eind produced, and what
do not.

Trial counsel have a duty to
guide their clients in making a good-
faith discovery search. But there is
a major difference between telling
the cUent to look for these kinds of
documents or look m these files, and
trying to tell the cUent to look for
documents relating to the subject



Online LibraryUnited States. Congress. House. Committee on the JAmendments to the Federal rules of civil procedure : hearing before the Subcommittee on Intellectual Property and Judicial Administration of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, June 16, 1993 → online text (page 24 of 45)