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

statute, two separate empirical studies will be
conducted on the data generated by these experiments.
The results of these studies will be submitted to
Congress by December 31, 1995.

As the first thirty-four plans indicate, local
CJRA plans will reflect a diversity of approaches to
discovery reform, including different variations of
mandatory disclosure. Almost forty percent of districts
so far have not even included any form of mandatory
disclosure in their plans. The vast majority of the



81-258 0-94-8



220



districts have chosen not to experiment with a
disclosure rule as sweeping as Rule 26(a)(1) would
mandate, most apparently believing that other approaches
to litigation reform hold more promise. Some districts
are experimenting with rules similar to Rule 26(a)(1),
so information will be gathered on its efficacy and how
it stacks up against other approaches to reform.

Rule 26(a)(1) jumps the gun on this process,
pushes aside the experimentation process, and
fundamentally alters established discovery procedures in
an extremely controversial manner. It cannot help but
undermine the CJRA effort as the courts and litigants
struggle to interpret and implement the new national
mandate.

It would be one thing if the Rule's merits were
clear and convincing. But, instead, a wide spectrum of
organizations have expressed overwhelming opposition
because of serious concerns about the negative impact
that the rule will have on civil litigation. Moreover,
the process by which Rule 26(a)(1) arrived at Congress
— with the Judicial Conference's Advisory Committee
first proposing it, then deleting it in the face of the
overwhelming opposition, then restoring it in a slightly
revised form and sending it on without further
opportunity for public comment, and the unusual response
it engendered from the United States Supreme Court —



221

also counsels against this premature fundamental
revision in civil litigation.

The proposed weakening of Rule 11, which now
provides some protection against unsubstantiated claims,
exacerbates the Rule 26(a)(1) problem by cutting back on
the tools available for discouraging wasteful and
expensive litigation of frivolous claims. We share the
concerns addressed more fully in the testimony of the
American Insurance Association (AIA) .



I. RULE 26(a)(1) UNJUSTIFIABLY JUMPS THE GUN ON THE
PROCESS MANDATED BY THE CIVIL JUSTICE REFORM ACT
OF 1990.



When Congress enacted the Civil Justice Reform
Act of 1990''", just three years ago, it recognized that
the "solutions to problems of cost and delay must
include significant contributions by the courts, the

litigants, the litigants' attorneys, and by the Congress

2
and the executive branch." Congress also recognized

that, in order to be successful, civil justice reform

would require a trial and error approach conducted at

the local level with local input about local problems

and needs.



■'■ Pub. L, No. 101-650, tit. I, 28 U.S.C. §§ 471-482.

^ Pub. L. No. 101-650, § 102(3).

3 . . . .

Justices Scalia, Thomas and Souter (in their opinion

[Footnote continued on next page]



222



On its face, the current effort to impose a
sweeping form of mandatory disclosure without awaiting

the outcome of the process of local experimentation is

4
"potentially disastrous and certainly premature."

Congress mandated not one, but two, comprehensive and

searching empirical studies of the effectiveness of

civil cost and delay reduction techniques. The

experiments include various combinations of discovery

reform, including variations on the mandatory disclosure

requirement. Congress should await the outcome of these

studies and evaluate them critically before imposing as

the national rule this highly controversial, untested,

fundamental change in civil litigation.



A. Congress Mandated a 5-Year Period of

Experimentation With Discovery Reforms in
the Civil Justice Reform Act of 1990.



When Congress enacted the CJRA in 1990, it
mandated a series of steps designed to encourage a
variety of experimentation and study at the local



[Footnote continued from previous page]
objecting to the new mandatory disclosure rule, see
below) similarly opined that "local experiments to
reduce discovery costs and abuse are essential before
major revision . . . ." Order and Memorandum
Transmitting Amendments to the Federal Rules of Civil
Procedure to the Congress, April 22, 1993, at 5
(Scalia, J. , dissenting) (joined in relevant part by
Thomas, J. and Souter, J.) (hereinafter "Statement of
Justice Scalia") (emphasis in original) .

4

Statement of Justice Scalia at 4.



223



district court level of ways to improve the civil
litigation process. First, it required every federal
district court across the country to implement
experimental reform plans designed to eliminate the
abuse, expense and delay that have been cited as
problems with the present civil justice system.
Pursuant to the CJRA, each district must develop a
reform plan in consultation with an advisory group
comprised of local practitioners and local litigants. A
central purpose of each reform plan is to assess new,
streamlined approaches to the discovery process. In
addition, districts are encouraged to consider increased
use of case management techniques and increased use of
alternative dispute resolution. All districts will have
plans in place by, ironically, the same date as the new
Rule 26(a)(1) will go into effect absent Congressional
action — December 1 of this year. The results of these

reform plans are to be evaluated and presented to

5
Congress by the end of 1994.

In addition to the general requirement that each

district implement a reform plan, the CJRA established

ten "pilot districts" that were required to implement

reform plans by December 31, 1991. After three years,



^ 28 U.S.C. §479



The statute required these pilot districts to apply

[Footnote continued on next page]



224



the results of these pilot programs will be evaluated by
"an independent organization with expertise in federal
court management . . . [which will] compare those

results to the impact on costs and delays in 10 other

7
districts, and prepare a report." At that point, the

Judicial Conference is also to submit a report to

Congress, recommending either expansion of the pilot

program or alternative, more cost effective programs to

reduce waste and delay in civil litigation, and the

Conference is to proceed to implement its preferred

g
approach through the Rules Enabling Act process.

In addition to the ten pilot programs, the CJRA

established a demonstration program under which it

required five additional district courts to conduct

9
specific procedural experiments. The Federal Judicial

Center and the Administrative Office of the United

States Courts will collect and analyze empirical data

from these demonstration districts. The Judicial



[Footnote continued from previous page]
specific principles and guidelines of litigation
management, many of which related to alternative
discovery reforms. See 28 U.S.C. § 473(a).

^ 136 Cong. Rec. S17575 (daily ed. Oct. 27, 1990)
(statement of Senator Biden) . The independent
organization selected to evaluate the effectiveness of
the pilot programs is the Rand Corporation.

' Id.

Pub. L. No. 101-650, § 104.



225



Conference must report the results of the pilot programs
and the demonstration programs to Congress by
December 31, 1995. """^



B. Both The House And The Senate Endorsed the
Process of Local Experimentation With
Controversial New Techniques For Streamlining
Civil Litigation.



Congress enacted the CJRA with overwhelming,
bipartisan support in both the House and the Senate. It
grew out of ideas developed by a task force that Senator
Joseph Biden commissioned in 1988 to recommend ways of
alleviating excessive costs and delay in the civil
justice system. The Brookings Institution and the
Foundation for Change convened that task force, and it
consisted of well-respected attorneys from the
plaintiffs' and defendants' bars, civil rights and
women's rights lawyers, attorneys representing consumer
and environmental organizations, representatives of the
insurance industry, general counsels of major
corporations, former judges and law professors.

The Task Force published a report entitled:
Justice For All — Reducing Costs and Delay in Civil



■'■° Pub. L. No. 101-650, § 104(d).

A list of Task Force members is attached as
Exhibit 1.



226



Litigation "^ (hereinafter "Brookings Task Force
Report") . This report contained twelve procedural
recommendations for improving the federal civil justice
system. The cornerstone was the development by each

district court of a "Civil Justice Reform Plan,"

13
developed with assistance from its local bar. The

Task Force reviewed a wide variety of reform proposals

and ultimately selected the district-by-district civil

justice reform plan mechanism as the most effective way

to reduce the costs and delays in the civil justice

system. In the Task Force's view, individual courts, in

consultation with local users of the federal court

system, would be in the best position to assess the

causes of excessive costs and delays in a particular

district and to craft a reform plan that addressed those

problems.

The House Judiciary Committee strongly supported

the Task Force's district-by-district approach as

embodied in the CJRA. As the House Report said, "Simply

stated, it is those who use and run the courts in any

given district that are in the best position to address



12

Reprinted in The Civil Justice Reform Act of 1990

and the Judicial Improvements Act of 1990 : Hearings on

S. 2027 and S. 2648 Before the Senate Committee on the

Judiciary. S. Hrg. 1097 . 101st Cong., 2d Sess. 421

(1990) (hereinafter "Senate Hearings") .

13

Brookings Task Force Report at 19-20, Senate

Hearings at 445-46.



227



14
the case management needs of that district." The

Judiciary Committee indicated that the district plan

mechanism was intended to redress, among other things,

excessive costs and delays in discovery. "[T]here is a

compelling need to control discovery and its attendant

costs. Several districts have developed successful

techniques for controlling discovery, and it is the

intent of the Committee, through this legislation, to

encourage such techniques. ""^^ The full House expressed

its support by passing CJRA under suspension of the

1 16
rules.

The Senate likewise strongly supported the

district court plan mechanism. According to the Senate

Judiciary Committee, which approved the bill 12-1, these

plans are the best way to utilize the expertise that has

developed in individual districts and to tailor reform

plans to the problems of particular venues.



There are a remarkable number of gifted
and talented judges, magistrates,
clerks, and administrators in the
Federal court system. . . . Prior to
this legislation, there was no adequate
means of drawing upon these resources
in every district court. Now there is
a means of doing so. There is a basis
for extending nationally the ideas that



14
15
16



H.R. Rep. No. 732, 101st Cong., 2d Sess . 10 (1990)

House Report at 10.

136 Cong, Rec. H13316 (daily ed . Oct. 27, 1990).



228



have been developed and will continue
to be developed at the local level. ^^



The Committee viewed participation by local advisory
groups as key to the development of effective plans,
recognizing that reforms which enjoy broad-based support
from the local bench, bar and other users of the civil

justice system are more likely to succeed than major

18
changes imposed without such support. We believe this

is certainly true for as radical a change as mandatory

disclosure.



C. The CJRA Plans Already in Place Have Adopted
a Variety of Discovery Reforms; Mandatory
Disclosure Is Only One of the Reform Ideas
that District Courts Are Trying, And Few Have
Decided That Sweeping Disclosure Of The Type
Proposed As The National Rule Here Should
Even Be Part Of Their Experimental Plans.



To date, thirty-eight of the nation's ninety-four

19
districts have implemented a CJRA plan. The plans

already in place have taken a variety of approaches to

reforming or streamlining the process of discovery. Few

incorporate a rule of the dimensions of Rule 26(a)(1).



17

S. Rep. No. 416, 101st Cong., 2d Sess. 15 (1990).

18

Senate Report at 15.

19

As described above (p. 3), the remaining fifty-six

districts are required to commence such plans by

December 1, 1993.



229



Comprehensive information about all CJRA plans
implemented before December 31, 1991, 34 districts in

all, is available in two publications — a 1992 report

20
of the ABA'S Litigation Section and a 1992 report

prepared by the Judicial Conference of the United

States. Significantly, almost forty percent of these

districts have not chosen any mandatory disclosure

reguirement as part of their reforms. Moreover, of the

twenty-one districts that have adopted some form of

mandatory disclosure, only seven appear to require

disclosure as broad in scope and as far-reaching as the

22
proposed amendment to Rule 26(a)(1). Apparently, the

trial judges and advisory groups, acting under the CJRA,

have not regarded mandatory disclosure, as proposed in

Rule 26(a)(1), as the clear solution to the problems

with civil litigation in the federal courts.



20 ... . .

Section of Litigation, American Bar Association,

Report of The Task Force on the Civil Justice Reform Act

(July 1992) (hereinafter "ABA Report").

2 1

Judicial Conference of the United States, Civil

Justice Reform Act Report: Development and

Implementation of Plans by Early Implementation

Districts and Pilot Courts (June 1, 1992) (hereinafter

"Judicial Conference Report") .

22 . .

A chart summarizing the mandatory disclosure

provisions that the twenty-one districts have adopted is
attached to this statement as Exhibit 2.



230



1. Document Disclosure

In the twenty-one districts that have mandatory
disclosure requirements, the nature of the document
disclosure requirement varies widely. Some courts have
limited their mandatory disclosure rules to certain

types of cases, such as expedited cases or pro se

23 •

prisoner cases (S.D.N.Y.) or personal injury, medical

malpractice, employment discrimination, or civil RICO

cases (D. Del.)* In addition, the courts have defined

in a variety of ways the subject matters covered by the

document disclosure requirement. For instance, the

Northern District of California limits its document

disclosure rule to documents that tend to support the

disclosing party's position. Even within districts,

there is variation in the approach to document

disclosure.



23 . .

According to the ABA Report, the Southern District

of New York limits this disclosure requirement to

expedited cases, while the Judicial Conference Report

says the District imposes "standardized discovery" only

in pro se prisoner cases.

24

For example, according to the ABA Report, in the

Northern District of Indiana, only one judge has

established a document disclosure requirement. The

Judicial Conference Report indicates that the District

has established three different experiments, involving

different judges, each requiring different degrees of

disclosure.



231

2. Identification of Potential Witnesses

The ABA Report indicates that, of the twenty-one
districts with mandatory disclosure provisions, only
about half require any disclosure regarding potential
witnesses. Again, even among those requiring some
disclosure, there is wide variation as to what needs to
be disclosed and when. There are limitations as to the
types of cases in which disclosure is required, and
there are limitations on the extent of disclosure
required. Few provisions are as sweeping as the
proposed Rule 2 6(a)(1).

3. Other Areas of Disclosure

In the other (and less controversial) areas of
disclosure covered by Rule 26(a)(1), the districts have
also taken divergent approaches. In contrast to
proposed Rule 26(a)(1), only seven of the twenty-one
plans with disclosure requirements specifically mandate
new disclosures regarding expert witnesses, and only
five of the plans specifically require new disclosures
of information relevant to damages computation. Indeed,
none of the districts reported on in the ABA Report has
a mandatory disclosure requirement as sweeping as Rule
26(a)(1) when considered in its entirety.



232



4 . The Plans In Place In The Home States Of
The Subcommittee Members Demonstrate The
Variety Of Approaches To Disclosure Being
Tried Under The CJRA.



The variety of experimentation under the CJRA in
these controversial areas is apparent just by examining

the district courts in states represented by members of

2 5
this Subcommittee. For instance, the United States

District Court for the District of New Jersey has not

included mandatory disclosure of any form in its plan.

According to the Judicial Conference Report, the Eastern

District of Wisconsin's plan mandates only the use of

standard interrogatories while the Western District of

Wisconsin's plan requires only disclosure of expert

witnesses at a preliminary pretrial conference. The

Southern District of New York has developed mandatory

disclosure requirements that only apply in limited

categories of cases. That court's plan apparently does

not require broad identification of potential witnesses

or information regarding expert witnesses.

The federal district courts in California have

taken varying approaches to discovery reform. The



25 . .

A chart summarizing the approach to mandatory

disclosure in the districts in the states that the

Subcommittee members represent is attached to this

statement as Exhibit 3 .

2 6

The plan exempts "simple cases" from the use of
mandatory interrogatories.



233

Eastern District of California's plan has no mandatory
disclosure requirement. Likewise, the Southern District
of California has adopted no new disclosure provisions.
The plan in place for the Northern District of
California requires mandatory disclosure of all persons
known to have discoverable information about factual
matters and all unprivileged documents in the party's
control that tend to support the positions that the
disclosing party has taken or is reasonably likely to
take in the case. Even that limited requirement does

not apply to cases before all judges or to all types of

27
cases.



The actual experience with the implementation of
the CJFIA confirms what the statute itself and its
legislative history suggests: The opportunity to
develop local plans produces a variety of ideas and
approaches. Most importantly for the present
discussion, those plans do not reflect, by a long shot,
universal acceptance of mandatory disclosure, let alone
disclosure as sweeping as that required by Rule



27

Neither report discusses the Central District of

California because that district had not adopted a plan

at the time the reports were drafted.



234



26(a)(1). Under these circumstances, there is no basis

to proceed to adopt Rule 26(a)(1) as the new national

28

standard.



II. THE PROPOSED DISCLOSURE REQUIREMENT WILL NOT

STREAMLINE LITIGATION, BUT WILL INCREASE COSTS
AND CREATE NEW RISKS AND DILEMMAS FOR LITIGANTS.



If the case had been clearly made that mandatory
disclosure as written into Rule 26(a)(1) would
streamline discovery, there might be a basis for
ignoring the CJRA process and proceeding directly to
national reform. But, to the contrary, virtually
everyone who has looked at this provision has found it
seriously wanting. Indeed, of the 208 comments



2 8 •

Those tracking the CJRA experiments report that it

is too early in the process to evaluate the

effectiveness of the various plans. Even the ones put

in place in 1992 have had little time to take effect,

particularly in light of the various time periods after

a case is filed before certain of the new requirements

are triggered. It is our understanding that little

information is expected to be available before 1994.

However, a recent survey of attorneys in Maricopa
County, Arizona, which has been experimenting for over a
year with a disclosure requirement similar to Rule
26(a)(1), seems to confirm the nature of its defects.
Those attorneys reported overwhelmingly that disclosure
has increased the costs of litigation, chilled the
willingness of clients to disclose information to their
own counsel, and interfered with the attorney work
product and attorney/client communication privileges,
and has not led to earlier disposition of cases nor
reduced unnecessarily adversarial conduct or "litigation
by ambush" techniques. See Attorneys Doubt Zlaket
Rules. Agree with Some at March Hearing . Maricopa
Lawyer, April, 1993, at 1.



235



submitted to the Advisory Committee of the Judicial
Conference in response to the original mandatory
disclosure requirement, 95% opposed the new rule.
Moreover, the Advisory Committee withdrew that proposal
in the face of that criticism, and it looked at first
like the proposed amendments would move forward without
the controversial mandatory disclosure provision. But
the Advisory Committee later suddenly reversed itself,
inserted a slightly revised mandatory disclosure
provision, and approved it without allowing any further
opportunity for public comment.

Unfortunately, despite the Judicial Conference's
good intentions, serious problems with the provision
remain.



A. Rule 26(a)(1) Will Increase Discovery
Disputes, Complexity. And Costs.



Most importantly from our point of view as
parties paying the high costs of litigation, the
provision will likely only increase costs and increase
complexity, not alleviate it.

We have the strongest interest in reducing the
costs and the delays associated with civil litigation.
We have everything to gain from discovery reforms that
would truly streamline the civil litigation process,
eliminate delays and decrease costs. However, we firmly



236



believe, as do most other observers, that Rule 26(a) (1)

will not accomplish any of those goals. Rather, the

proposed disclosure requirement simply adds an

additional layer of discovery and will lead to satellite

litigation concerning the sufficiency of disclosure and

the necessity for court-imposed sanctions. Because of

the risk of serious sanctions for misreading the new

obligation, there will be a strong inclination for

parties to battle out the application of the new

requirement through motions practice early in

litigation, without any obvious diminution of other

discovery requests and fights. Parties may also take

the route of over-disclosure to avoid risking violation

of the vague standard that Rule 26(a)(1) would impose.

All of this means simply more delays and more costs for

us.

Indeed, Justice Scalia (joined by Justices Thomas

and Souter) noted this irony, that the proposed

Rule 26(a) (1)

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 whether it
has fulfilled its continuing obligation
to supplement the initial disclosure.
Documents will be produced that turn
out to be irrelevant to the litigation,
because of the early inception of the



237



duty to disclose and the severe
penalties on a party who fails to
disgorge in a manner consistent with
the duty. 29



B. Rule 26(a) (1) Also Creates New Risks
For Litigants By Radically Altering
Long-standing Concepts Of Parties'
Obligations In Civil Litigation And Of
The Attorney-Client Relationship.



The proposed rule, which imposes a duty to
disclose automatically and on an ongoing basis
information to one's adversary, means that parties no
longer will simply be responsible for responding to
discovery requests, which are often validly subject to
dispute for being overbroad or vague. Instead, the
rules themselves would create for parties and their
counsel a broad and vague requirement to evaluate
constantly what information might be considered
"relevant" to the facts pleaded and to disclose
immediately all such information. Parties would be

required to conduct a "reasonable" investigation and