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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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matter of the case. No lawyer should
be placed in the position of being
second-guessed or sanctioned for
making the wrong cut on what the
client should search for.

Federal trial judges are for the
most part extremely busy and do
not have the time (assuming they
have the inclination) to supervise
disclosure any more than they have
had the time to supervise discovery.

The judges in the Southern or
Western District of Texas (and in
many other districts), for example,
cannot possibly manage their civil
cases this way. They are spending
10. 12 and more hours a day trying
to process the never-ending torrents
of criminal cases that come in each
week between the increasing Scylla
of mandatory minimum sentences
and the Charybdis of more catego-
ries of crimes being enacted by
Congress each year. (The recent
proposed bill making it a federal
offense to commit a crime using a
gun transported in interstate com-
merce bterally would have flooded
the federal courts.)

The federal judges I have spo-
ken to think that the suggested
solution to their civil (not to men-
tion cnminal) caseload is a more
active or hands-on role is. well,

lb abuse Taylor's metaphor, if
the ship of Utigation is not to sink in
its own ocean of paper, motions and



:ne oiher anciliary flotsam and jet-
sam of discover.- lor lis practical
equivalent, disclosure), then strong
medicine is required.

The obvious solution is one the
rest of the civilized world (or
at least the Enghsh and civil
law systems) has long used: No

Lawyers in England and on the
Continent investigate the case be-
fore it is filed ( presumably trying all
the while to settle it), obtain the
documents and witnesses they need
to try It, and, only then, file a
lawsuit. At that point they are
ready to try it.

Once the suit is filed, prelimi-
nary pleadings are filed to see if the
case has legal merit. If it passes this
test, a tnal date is set. Before tnal,
the parties exchange lists of wit-
nesses and a short statement of
what they will say, and turn over
copies of the exhibits they plan to
use Then they go to tnal. If a
v^itness IS unavailable because he is
in another junsdiction or on his
deathbed, then his deposition can be
taken, but this is the only exception.

Not only do lawyers in Eng-
land and Europe do this every day,
so do U.S. criminal defense lawyers
and those who try arbi-

I know of no empiri-
cal study or scientific
proof that suggests that
this produces a result
that is less fair. Nor do I
know of any study or
proof to indicate that our
unique, over-burdened

I do know, though, that there
are very few actual litigants — those
who have been through the cruable
of American discovery — who think
that our discovery system is worth
the time and expense it has engen-

There may be a few smoking
guns I more likely, water pistols)
that are not unearthed, and perhaps
even a few truly meritorious suits
that do not succeed. But it is ex-
tremely doubtful that these few
exceptionsjustify the overwhelming
burdens and abuses wrought by our
current system of pretrial practice
and discovery.

I also doubt — notwithstanding
Judge Schwarzer's inference and
Taylor's explicit charge that law-
yers would oppose discovery reform
because "it would deliver a major
hit to the revenue base of large law
firms" — that there are many law-
yers who think that the present

system does not need reform

Ehrmnating discovery entirely
would streamline cases and require
lawyers and clients to think sen-
ously about the merits of a suit
before filing or defending one. (Re-
quiring the losing side to pay the
other's attorneys' fees and expenses
also might go a long way toward
reducing our overloaded civil litiga-
tion, but that IS a different, al-
though related, subject. )

There may be a few types of
cases where some limited discovery
would be appropnate because of the
nature of the issues — employment
discnmin-ation, for example, where
the plaintiff needs to have access to
the employer's statistical employ-
ment information — but these
should be a narrow exception.

Doing away with discovery prob-
ably would require pleading with
greater particularity than under the
current (but not terribly informa-
tive) system of notice pleading —
where, for example, a lawyer only
has to allege that one of three
defendants, or perhaps all three,
negligently drove or caused to be
driven a motor vehicle against plain-
tiff to state a claim. But more
particularity certainly would help
frame the issues better and might

pretrial conference i normally a month
or so after the discovery cut-off date i
are automatically set in every case.
They can be extended only for good
cause (and never merely by agree-
ment of counsel) Tnal is set within
three to eight weeks of the final
pretnal conference. The judges op-
erate on a master calendar, so if one
judge IS not available, another will
try the case.

Unless they obtain a court
order based on good cause, the
parties are limited to 30 interroga-
tones — including subparts — and five
depositions of non-parties. Objec-
tions to discovery must be made
within 15 days. And the parties are
required to consult in good faith
before filing any motion.

Motions are noticed to the near-
est Friday, when all of the judges sit
to hear both cnminal and civil
motions. Most motions are deaded
from the bench; those that are not
usually come down the following
week. Wntten decisions are typi-
cally not very long, but the parties
know why the court has ruled the
way It has.

More importantly, they obtain
a result that moves them toward
tnal, or disposes of the case entirely.
And how many lawyers can hon-

C / he great experiment of discovery is

I demonstrably an abject failure. It should
V^ be eliminated, period.

system is

even eluninate meritless cases early

I have tried cases under both
the Amencan and Enghsh systems,
and have concluded that the U.S.
discovery system is not worth it.

The great expenment of dis-
covery — and the notion that it would
allow a fairer tnal at less expense to
the litigants — is demonstrably an
abject failure. It should be elimi-
nated, period, and not replaced by
another system that does not solve
the problem, and may compound it.


f discovery is not simply abol-
ished, then it has to be severely
truncated, both in scope and in
the time it takes. The Eastern Dis-
trict ofVirginia — the "Yocket docket' —
has such a system. It is not as good
as no discovery, but it is certainly
better than what exists in most
courts today.

Finn discovery deadlines ( usu-
ally in the three- to four-month
range) and firm dates for a final

estly say that their case was hurt
because they did not get a crack at a
particular document, or could not
take seven more depositions?

Lawyers who practice m the
Eastern Distnct of Virgima know
that they have to be ready to go to
tnal. More than 90 percent of all
civil cases, however, settle. The
judges I have spoken to are unani-
mous that the way to make sure
cases settle earlier is to have firm
deadlines, both for discovery and for
trial. That is why the Eastern Dis-
tnct of Virginia has among the
highest and fastest disposition rates
of any federal trial court.

Judge Schwarzer's thoughtful
proposal takes aim at a senous
problem. But based on the expen-
ence of other trial lawyers and
judges I have spoken to, it does not
go far enough, and simply adds
another monster to the rest of those
that inhabit the nether regions of
darkness and waste we know as
pretnal discovery. ■

Repnnied with pemission from the December 1991 issue of ABAJOfR.\Al C 1991 AMERICAN BAR ASSOCIATION


r/^B 5









Data: Fabruary 7, 1992


Tha concapt of discloaura, which forms tha basis
for tha Bos^ significant changa to tha discovary procass
considarad to data, raisas a nuabar of significant practical
and philosophical problaas that must ba raaolvad bafora a
mandatory dlaelosurad systam of discovary is raquirad in
avary fadaral district court, tfhila tha Litigation Saction
supports tha aarly, voluntary diacloaura of cartain
information (particularly tha namaa and addrassas of parsons
having Knovladga and tha location of documants most ralavant
to tha casa) , tha Saction has grava concarna, for tha raasons
that ara suaaarizad balow, ragarding tha faasibility of tha
disclosura modal incorporatad in tha currant proposals.


lirai. th« standard for initiai disclosures
containad in Proposed Rul« 26(a)(1) - information "that bears
significantly [or is "likely to bear significantly"] on any
claia or defense" is both highly suls^ective and different
from the current standard eyf Rule 26 permitting discovery
that IS relevant to the suts^ect matter or reasonably
calculated to lead to the discovery of admissible evidence.
As a practical matter, this means that each party about to
maJce its mandatory initial disclosures will )cnow tvo things-
first, that It need not disclose all discoverable material,
and second, that it will be making its determination of what
should b« disclosed before it knows what its adversary will
be disclosing. We submit that this will, at least for the
initial period of several years when the standard is tested
and clarified in specific cases, lead to disclosure^^^at are
more limited than what the drafters expected. These initial
disclosures will therefore be less helpful in narrowing
future discovery, while that discovery is subjected to
presumptive numerical limitations that are imposed by other
rules changes that are proposed on the assumption that there
will be full initial disclosures.

Second, in a notice-pleading system, what is likely
to "bear significantly" on a defense is not all clear when
the defendant answers the complaint, which is thirty days
before the disclosures are required to be made, vihile we
believe that any disclosure system that eventually is
implemented should require simultaneous early exchanges, the
danger is that the defendant will narrowly construe the
requirement, and that the plaintiff may consequently be
disadvantaged by the other limits proposed on the number and
length of depositions and interrogatories.

Third , there is a major difference between a lawyer
telling her client to look for specific documents covered by
the adverse party's docxiaent request or interrogatories, and
telling the client to look for docximents "that are likely to
bear significantly on any claim or defense." That standard
may well complicate, rather than simplify, discovery in cases
such as product liability cases that proceed under multiple
and diverq«nt l«qal theories.

there is a fundamental philosophical
problem po««d by engrafting a disclosure system onto the body
of an adversary system of justice which is likely to reject
it as fundamentally incompatible tissue. The disclosure
proposal could simply inject another layer of uncertainty —
and therefore potential for dispute and more pretrial
maneuvering — - into the arena. £11 generally Kieve,
Discovery Reform! Mavbe the Best Solution Is No DisCQVgrv At
&ii, ABA Journal (D«c. 1991). Sn aIas, Kieve, "&n
Alternative Proposal." Appendix 3.


vmil* th«s« problsms do not necassarily require
rejection of any disclosure-based system, they caution
against « rush to mandating such a system nationally before
there is a useful body of empirical evidence as to whether,
or under what circumstancus, such a system can wor)c both
justly and efficiently. Fortunately, there are laboratories
in which such empirical data will be generated in the next
two years, in the form of the pilot and early implementation
district courts which have implemented variants of a
disclosure-based discovery system as part of their Civil
Justice Reform Act "civil justice expense and delay reduction
plans." Given th« problems posed by a disclosure-based
discovery system, w« believe that the proposals for initial
disclosures contained in Proposed Rule 26(a)(1) should be
withdrawn at this time, and reevaluated in two years in light
of the experience of the pilot districts.


^Pr% C



[April 22, 1993]

Justice Scalia, with whom Justice Thomas joina, and
with whom JUSTICE SOUTER joins as to Part II, filed a
dissenting statement.

I dissent from the Court's adoption of the amendments
to Federal Rules of Civil Procedure 11 (relating to sanc-
tions for frivolous litigation), and 26, 30, 31, 33, and 37
(relating to discovery). In my view, the sanctions proposal
will eliminate a significant and necessary deterrent to
frivolous litigation; and the discovery proposal will in-
crease litigation costs, burden the district courts, and,
perhaps worst of all, introduce into the trial process an
element that is contrary to the nature of our adversary



* * * •


Discovery Rules

The proposed radical reforms to the discovery process
are potentially disastrous and certainly premature — partic-
ularly the imposition on litigants of a continuing duty to
disclose to opposing counsel, without awaiting any request,
various information "relevant to disputed facts alleged
with particularity." See Proposed Rule 26(aXlXA),
(aXlXB), (eXD. This proposal is promoted as a means of
reducing the unnecessary expense and delay that occur in
the present discovery regime. But the duty-to-disclose
regime does not replace the current, much-criticized
discovery process; rather, it adds a further layer of discov-
ery. It will likely increase the discovery burdens on
district judges, as parties litigate about what is ''relevant"
to "disputed facts,** whether those facts have been alleged
with sufficient particularity, whether the opposing side has
adequately disclosed the required information, and wheth-
er it has fulfilled its continuing obligation to supplement
the i"i»inl disclosure. Documents will be produced that
turn out to be irrelevant to the litigation, because of the
early inception of the duty to disclose and the severe
penalties on a party who fails to disgorge in a manner
consistent with the duty. See Proposed Rule 37(c) (prohib-

it do not disaffTM with th* propoMl to mak* law firms UabU for an
attorney's miseondnet ondar tha Rola, — Propoaad Rala 11(e), or with
tha proposal that Rnla 11 sanctions b« appliad whan daims in pltadings
thMt at ooa tima wars not in violation of tha nila ara porsnad aflar it is
avidant that thay lack support, saa Propoaad Rola 11(b); Adviaory
Committaa Notaa to Propoaad Rola 11, p. 51.

It ia earions that tha propoaad ruia rsf arding sanctiona for diseovary
sbosaa rwquitm aanetiona, and spacificaily racommands financial sanctiona
and eomp«iaation to tha moving party. Saa Propoaad Rala 37(aK4XA),
(cXl). No axplanation for tha inconsisUncy is givan.



iting, in some circumstances, use of witnesses or informa-
tion not voluntarily disclosed pursuant to the disclosure
duty, and authorizing divulgement to the jury of the
failure to disclose).

The proposed new regime does not fit comfortably
within the American judicial sj^tem, which relies on
adversarial litigation to develop the facts before a neutral
decisionmaker. By placing upon lawyers the obligation to
disclose information damaging to their cUents— on their
own initiative, and in a context where the lines between
what must be disclosed and what need not be disclosed
are not dear but require the exercise of considerable
judgment — the new Rule would place intolerable strain
upon lawyers' ethical duty to represent their clients and
not to assist the opposing 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. See Advisory
Committee Notes to Proposed Rule 26, p. 96.

It seeiiis to me most imprudent to embrace such a
radical alteration that has not, as the advisory committee
notes, see id, at 94, been subjected to any significant
testing on a local level. Two early proponents of the duty-
to-disdose regime (both of whom had substantial roles in
the development of the proposed rule— one as Director of
the Federal Judicial Center and one as a member of the
advisory committee) at one time noted the need for such
study prior to adoption of a national rule. Schwarzer, The
Federal Rules, the Adversary Process, and Discovery
Reform, 50 U. Pitt. L. Rev. 703, 723 (1989); Brazil, The
Adversary Character of Civil Discovery: A Critique and
Proposals for Change, 31 Vand. L. Rev. 1296, 1361 (1978).
More importantly. Congress itself reached the same
condusion that local experiments to reduce discovery costs
and abuse are essential before msgor revision, and in the
Civil Justice Reform Act of 1990, Pub. L. 101-650, §§ 104,
105, 104 Stat. 5097-5098, mandated an extensive pilot
program for district courts. See also 28 U. S. C. §§471,
473(aX2XC). Under that legislation, short-term experi-



ments relating to discovery and case management are to
last at least three years, and the Judicial Conference is
to report the results of these experiments to Congress,
along with recommendations, by the end of 1995. Pub.
L. 101-650, § 105, 104 Stat. 5097-5098. Apparently, the
advisory committee considered this timetable schedule too
prolonged, see Advisory Committee Notes to Proposed Rule
26, p. 95, preferring instead to subject the entire federal
judicial system at once to an extreme, costly, and essen-
tially untested revision of a major component of dvil
litigation. That seems to me unwise. Any major reform
of the discovery rules should await completion of the pilot
programs authorized by Congress, especially since courts
already have substantial discretion to control discovery.^
See Fed. Rule Civ. Proc. 26.

I am also concerned that thiq revision has been recom-
mended in the face of nearly universal criticism from
every conceivable sector of our judicial system, including
judges, practitioners, litigants, academics, public interest
groups, and national, state and local bar and professional
associations. See generally Bell, Vamer, & Gottschalk,
Automatic Disclosure in Discovery — The Rush to Reform,
27 Ga. L. Rev. 1, 28-32, and nn. 107-121 (1992). Indeed,
after the proposed rule in essentially its present form was
published to comply with the notice- and-comment require-
ment of 28 U. S. C. § 2071(b), public criticism was so
severe that the advisory committee announced abandon-
ment of its duty-to-disclose regime (in favor of limited
pilot experiments), but then, without further public
comment or explanation, decided six weeks later to
recommend the rule. 27 Ga. L. Rev., at 35.

Constant reform of the federal rules to correct emerging

'For the sam* reaaon, the propoeed presumptive limit* on depositioni
and interrogatohea, see Proposed Rules 30, 31, and 33, should not be



problems is essential. JUSTICE WHITE observes that
Justice Douglas, who in earlier years on the Court had
been wont to note his disagreements with proposed
changes, generally abstained from doing so later on,
acknowledging that his expertise had grown stale. Ante,
at 5. Never having specialized in trial practice, I began
at the level of expertise (and of acqmescence in others'
proposals) with which Justice Douglas ended. Both
categories of revision on which I remark today, however,
seem to me not matters of expert detail, but rise to the
level of principle and purpose that even Justice Douglas
in his later years continued to address. It takes no expert
to know that a mecisure which eliminates rather than
strengthens a deterrent to frivolous litigation is not what
the times demand; and that a breathtakingly novel
revision of discovery practice should not be adopted
nationwide without a trial run.

In the respects described^ I dissent from the Court's


Appendix 5.— Statement of the American Institute of Cer-
tified PuBuc Accountants, Securities Industry Associa-
tion, Alliance of American Insurers, American Insurance
Assocl\tion, National Association of Independent Insurers
Aetna Life and Casualty Insurance Co., Alustate Insurance
Co., Jumper National Insurance Co., Netherlands Insur-
ance Co., and State Farm Insurance Co., June 16 1993

AND THE administration OF JUSTICE


hearing on proposed AMENDMENTS TO
June 16, 1993



As frequent parties to lawsuits in federal
courts, the members of the insurance, accounting and
securities communities joining in this statement have a
significant stake in changes that would reduce
unnecessary expense and delay in civil cases. We are
the ones who pay the expenses associated with
unnecessary and burdensome procedures, and we are
constantly searching for ways to make litigation fairer
and more efficient. We applaud the Judicial Conference
for the time and attention devoted to studying these
problems and we support many of the proposed amendments
because they will advance our shared goals.
Nevertheless, we are profoundly troubled by the proposal
to amend Federal Rule of Civil Procedure 26(a)(1), and
for the reasons set forth below, we urge that Congress
act affirmatively to strike that proposal before it goes
into effect on December 1 of this year.

The proposed amendment to Rule 26(a)(1) would
create a new, self -executing and continuing requirement
for parties to identify all documents and witnesses
relevant to the facts alleged in a complaint and other
pleadings. The new rule would require automatic, early
disclosure — without any requirement of a discovery
request from the opposing party — of all witnesses and


documentary evidence in the possession of either party
that is "relevant to disputed facts alleged with
particularity in the pleadings." The rule would also
require parties to exchange automatically information
concerning damages and insurance coverage. Pursuant to
proposed Rule 37(c), any party that fails to disclose
the information required by proposed Rule 26(a) will be
prohibited from introducing witnesses or information it
failed to disclose during "discovery" as evidence in any
trial, hearing or motion, unless its failure to disclose
was harmless.

We are opposed to proposed Rule 26(a)(1) because
it seeks to impose a radical revision to civil discovery
which most observers believe will increase, not
decrease, the costs and inefficiency of litigation and
which will create serious new risks and issues for
litigants. It will create disputes over the sufficiency
of dis'^losure and the necessity for court-imposed
sanctions, adding an additional layer of discovery
disputes and encouraging costly over-disclosure of
unnecessary and/or irrelevant information. By imposing
a duty to disclose information to one's adversary,
automatically and on an ongoing basis, the proposed
amendment in effect requires litigants to invest time,
money and personnel resources in the service of their
adversaries. It also threatens the most fundamental


elements of our adversary system — the lawyer's duty of
loyalty, the lawyer's duty to zealously represent one's
client and the attorney-client privilege. Most
strikingly, it would do all of this without awaiting the
results of the civil justice reform experiments that
Congress mandated in 1990 under the Civil Justice Reform
Act ("CJRA") .

In the CJRA, Congress mandated a process of trial
and error and evaluation in the local district courts,
to permit experimentation with a wide variety of ideas
for improving the handling of civil suits based upon
input from all "users" of the civil justice system. The
period of local experimentation mandated by the CJRA is
now underway. Thirty-eight districts already have CJRA
plans in place; the remaining districts will have their
plans in place by December 1, 1993. Pursuant to the

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 25 of 45)