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

30
disclose what they learn to avoid violating the rule.

Compliance with these requirements would be judged

through twenty-twenty hindsight.



2 9

Statement of Justice Scalia at 4 (emphasis in

original) .

3

See Proposed Rule 26(g)(1) and Advisory Committee's

Note, reprinted in Amendments to the Federal Rules of
Civil Procedure and Forms . H.R. Doc. No. 74, 103rd
Cong., 1st Sess. at 229 (1993).



238



This reformulation of the pretrial adversary
process is so radical that it threatens the most
fundamental elements of our adversary system. It
requires litigants to use their time, money and
personnel resources in effect to aid the opposing side
in litigation. Moreover, as Justice Scalia put it,
"[rjequiring 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

31
service of the adversary."

The problems created by this radical

transformation of the parties' and counsel's duties is

explored further in the statement submitted at this

hearing on behalf of Lawyers for Civil Justice and

others. We join wholeheartedly in that discussion of

the serious risks and dilemmas that Rule 26(a)(1) would

create.



III. CONGRESS SHOULD SCRUTINIZE THE PROPOSED RULE
CHANGES WITH UNUSUAL CARE IN LIGHT OF THE
SUPREME COURT'S TEPID "APPROVAL," SERIOUS
PROCEDURAL CONCERNS, AND THE BREADTH OF
OPPOSITION TO MANDATORY DISCLOSURE.



The statement submitted on behalf of the Lawyers
for Civil Justice and others also explains with great
authority why Congress can and should act here under the



31

Statement of Justice Scalia at 5.



239



Rules Enabling Act. We concur and join with that
explanation. We want to emphasize in particular three
important and unusual circumstances that are present
here and which counsel in favor of careful Congressional
scrutiny.

First , the Supreme Court's review was
extraordinary, to say the least. Three Justices —

Scalia, Thomas and Souter — dissented vigorously on the

32

mandatory disclosure provision. Justice White filed a

separate statement in which he explained the extremely
limited role that he believed the Court takes in
reviewing proposed Rule changes, which he described as

restricted to evaluating whether "the rulemaking process

3 3
has failed to function properly." And, perhaps most

strikingly, picking up on that theme, in his letter to

Congress transmitting the proposed changes on behalf of

the Court, Chief Justice Rehnquist wrote, "While the

Court is satisfied that the required procedures have

been observed, this transmittal does not necessarily



32

Justice Scalia, joined by Justice Thomas, also

objected strenuously to the proposed weakening in

Rule 11.

33

Statement of Justice White, accompanying Order and

Memorandum Transmitting Amendments to the Federal Rules

of Civil Procedure to the Congress, April 22, 1993, at

5.



240



indicate that the Court itself would have proposed these

34
amendments in the form submitted."

Second , the mandatory disclosure requirement was
subject to so much criticism during the notice-and-
comment stage of promulgating the proposed amendments
that the Judicial Conference dropped it from the
proposed amendments, and then suddenly restored it at
the last minute in a revised form. That revised version
of the mandatory disclosure requirement was never
subject to public comment or discussion, but was simply
sent on to the Supreme Court.

Third, the mandatory disclosure requirement has
been criticized by professional groups on both sides,
plaintiff and defense, and by litigants like us. For
example, and aside from the overwhelming opposition
expressed during the Judicial Conference proceedings,
the Chamber of Commerce and the Association of Defense
Trial Attorneys joined with, among others, the Public
Citizen Litigation Group in a submission to the Supreme
Court in opposition to the mandatory disclosure
requirement. Indeed, we are unaware of many, if any,
supporters of the proposal outside of the Judicial
Conference.



34

April 22, 1993 Letter from Chief Justice William H.

Rehnquist to Speaker of the House of Representatives

Thomas S. Foley, transmitting proposed amendments to the

Federal Rules of Civil Procedure.



241



IV. THE WEAKENING OF RULE 11 EXACERBATES THE
PROBLEMS THAT RULE 2 6(a)(1) WOULD CREATE
AND IS OTHERWISE UNWISE.



The risks that Rule 26(a) (1) creates of
additional, unnecessary and unfair costs and burdens is
only increased by the proposed alteration in Rule 11,
which today provides at least some deterrence of
frivolous filings. By weakening its application
generally and eliminating entirely its application to
discovery disputes, litigants in effect are given
additional leeway to press baseless claims, including
claims concerning the mandatory disclosure obligations,
with fewer attendant risks. Yet, it is far from clear
that the case has been made for accepting this
additional cost to litigants like ourselves, who are
often the target of frivolous "strike suits," designed
to extort nuisance value settlements.

In this regard, we note the concerns expressed in
the more comprehensive discussion of the problems with
the proposed amendments to Rule 11 contained in the
statement submitted for this hearing on behalf of the
American Insurance Association, and we ask the
Subcommittee to give those concerns serious
consideration .



242



CONCLUSION

Rule 26(a) (1) reaches out in an area of great
controversy to impose nationwide a radical change in
civil discovery rules, a change that is almost
universally viewed as a change for the worst, and it
does so at the very moment that the courts are
developing a record on civil litigation reform under a
program of experimentation that Congress mandated.
Under these circumstances, we, as strong advocates of
truly effective civil litigation reform, urge this
Subcoitunittee to write and report legislation to strike
the provisions of Rule 26(a)(1) from the amendments to
the Federal Rules of Civil Procedure that are scheduled
to go into effect on December 1, 1993.



243

EXHIBIT I



vl EMBERS OF THE TASK FORCE



rhe following were members of the Brookings Task Force on Civil
[ustice Reform:

QEBRA BALLEN IS Vice President for Policv Development and
Research at the American Insurance Association in Washington.
O.C.. where she is responsible for long-range planning on a variety
jf issues affecting the property -casualty insurance industry.

ROBERT BANKS IS Counscl to Latham (5c Watkins in New York.
He was formerly General Counsel of the Xerox Corporation and
Chairman of the Board of the American Corporate Counsel Asso-
ciation.

ROBERT G. BECAM is President of Langerman, Bcgam, Lewis
and Marks, PA., in Phoenix, Arizona. He has served as President
oi the Association of Trial Lawyers of America.

GIDEON CASHvtANisa senior partner at Pryor, Cashman,
Sherman <Sc Flynn in New York.

ALFRED w. coRTESE isa partner at Kirkland ic Ellis, Wash-
ington, DC, who has litigated numerous commercial, antitrust,
tort, and products liability cases in the courts and administrative
agencies. He is a former Assistant Executive Director of the Federal
Trade Commission and is currently a member of the Executive
Committee of Lawyers for Civil Justice.

5LSAN GETZENOANNER IS a partner at Skadden, Arps, Slate,
Meagher &c Rom in Chicago, Illinois. She was formerly a judge in
the United States District Court for the Northern District of Illinois.

MARK CITE N STEIN (Reporter) is Counsel to Mayer, Brown
i Piatt m Washington, DC and Executive Director of the Founda-



244



IL'STICE FOR ALL



lion tor Change, Washington, DC. He was formerly Chief Counsel
to the Judiciary Committee of the U.S. Senate.

BARRY GOLDSTEIN is Director of the Washington office of
the .MAACP Legal Defense and Educational Fund.

lAMiE coRELiCk is a partner at .Miller, Cassidy, Larrocca d
Levvin m Washington. DC. She is currently Secretary to the Ameri-
can Bar Association s Section of Litigation and was Chair of its
Committee on Complex Crimes Litigation. She has also taught tnaj
advocacy ^t the Harvard Law School.

M ^ R c I A 0. c R E E N 8 E R c E R is the .Managing Attorney of the
National Women's Law Center in Washington, DC. She founded
the Women's Rights Project of the Center for La w and Social Policy
and has practiced law with Caplin & Drysdale in Washington.

PATRICK HEAD is the Vice President and General Counsel ot
the FMC Corporation. He previously held the same position for
Montgomery Ward.

DEBORAH HENSLERis Director of Research at the Institute
for Civil justice. Rand Corporation, Santa Monica, California.

w. M I c H A E L HOUSE is a partner at Shaw, Pittman, Potts <Xt
Trowbridge m Washington, DC. He was formerly Administrative
Assistant to Senator Howell Heflin.

SHIRLEY HUFSTEDLER is a partner at Hufstedler, Miller, Kaus
ic Beardsley in Los Angeles. She formerly served as U.S. Secre-
tary of Education, a federal judge on the United States Court or
Appeals for the .Ninth Circuit, and a county and state court judge in
California.

KENNETH KAY is a partner at Preston, Thorgrimson, EUis i
Holman, Washington, DC, and Executive Director of the Council
on Research and Technology. He was formerly a Counsel to the
Judiciary Committee of the US Senate and Legislative Director for
Senator Max Baucus.

c.ENE KIM MEL MAN is the Legislative Diredorbf the Consumcf
Federation of Amenca, where he directs the federation's legislative



245

and regulatory intervention program. He was formerly a staff
attorney for Congress Watch.

s o R M A N K R I V o s H A is Executlve Vice President-Admini-
stration and General Counsel for Ameritas Financial Services of
Lincoln. Nebraska. He was formerly the Chief Justice of the Ne-
braska Supreme Court.

LEO LEVIN is Leon Meitzer Professor of Law Emeritus at the
University oi Pennsylvania Law School, specializing m civil proce-
jure and judicial administration. ^â– ' ^ was formerly Director of the
Federal Judicial Center.

CARL u. LiGCio is the General Counsel of Ernst & Young in
Njew York. He was formerly Chairman of the Board of the Ameri-
can Corporate Counsel .Association.

ROBERT E. LiTAN (Reporter) is a Senior Fellow and Director
oi the Center for Economic Progress within the Economic Studies
Program at the Brookings Institution. He is also Counsel to Powell.
Goldstein, Frazer &c Murphy in Washington, D.C., and a Visiting
Lecturer in Banking Law at the Yale Law School.

FRANK V1CFADDEN is the Senior Vice President and General
Counsel of Blount, Inc. He waj formerly Chief Judge of the United
States District Court for the District of Alabama and he is currently
Chairman of the Board of the American Corporate Counsel Asso-
ciation.

FRANCIS MCGOVERN isa Professor of Law at the School of
Public Health, University of Alabama at Birmingham. He has
served as a special master in several major cases involving toxic tort
allegations.

STEPHEN B. MiDDLEBROOK is the Senior Vice President and
General Counsel at Aetna Life & Casualty. He served on the Ameri-
can Bar Association's Action Commission to Improve the Tort
Liability System and was a founder of the American Corporate
Counsel Association, where he now serves on the Executive Com-
mittee.



246

E D vv A R D MLLLER IS Vice President, General Counsel, anH
Chief Administrative Otticer ot Whittaker Corporation. He for
merly practiced law with the Washington, DC, tirm of Lg.
Hawes, Svmington. Martin i Oppenheimer.

ROBtKF St ^'ScooD 15 a partner in charge of litigation, antitrus*
.irbitration and competition law services m the London otfice p,.
Suilivan ic Cromwell. He was formerly Managing Partner of the
rirm s Litigation Group m .New York.

\ L A \ :• ^ ^ i^. E s !s Deputy Executive Director of the Assooa.
tu)notTriai Lawversot America. He was formerly General Coun«e'
to the House judiciary Committee.

K I c H A K D r »i L 1. IS Vice President and General Counsel of .Xerot
Corporation. He was previously in private law practice.

I L D > r M p E s D E L L is an Assistant Vice President of Law and
Public Affairs at Aetna Life i Casualty, where she oversees the
company s civil justice reform efforts.

lOMN A. PENOERCRASS is a Senior Attorney in the Research
and Policy Analysis Division of the Environmental Law Instinjte
He formerly taught law at the Illinois Institute of Technologv.
Chicago-Kent College of Law, and practiced law in the public anc
private sectors.

GEORGE PRIEST is the john .M. Olin Professor of Law and
Economics at the Yale Law School, where he teaches torts, products
liability, insurance policy, and antitrust law. He also directs t.^e
Program in Civil Liability at the Yale Law School.

CHARLES 8. RENFREW IS a Director and Vice President-La'A
oi the Chevron Corporation. He was formerly a United Stotc^
District judge for the Northern District of California and Depu:v
Attorney General of the United States.

roNY ROis.MAN is Of Counscl to Cohen, Milstein i Hausre: J
Washington, DC. He formerly served as the Director of Tr.i.
Lawyers for Public Justice and as Chief of the Hazardous Waste
Section of the Land and N'arural Resources Division of the L^
Department oi justice.



247



jQHN F. 5CHMUTZ is the Scnior Vice President and General
Counsel for E.I. duPont de Nemours & Conipany, Wilmington,
Delaware.

CHRISTOPHER SCHROEDER Is a Professor of Law at the Duke
L'niversity Law School, where he teaches civil procedure, environ-
niental law, and property. Previously he practiced law with
McCutchen, Doyle, Brown & Emerson and Armour, Schroeder, St.
John and Wilcox, specializing in civil litigation.

BILL WAGNER Is 3 trial lawyer in Tampa, Florida, who rep-
resents clamiants in personal injury and wrongful death matters.
Currently he is the President of the Association of Trial Lawyers of
America.

DIANE WOOD is Associate Dean and Professor of Law at the
University of Chicago Law School. Formerly she practiced law
with Covington ic Burling in Washington, D.C.

In addition to the above members, several individuals provided
valuable assistance to the task force during its deliberations. They

include:

Jeffrey Connaughton, Special Assistant. Senate }udiciary Committee
Terrence Dungworth, Institute for Civil Justice, Rand Corporation
Frank Flegal, Professor of Law, Georgetown University Law School

Mary Kay Kane, Professor of Law, Hastings College of Law, University

of CalifoDua

Jeffrey Peck, General Counsel, Senate Judiciary Committee

The Honorable Robert F. Peckham, Chief Judge. Northern District of
California

Leonard M. Rin^, Chairman of the Torts and Insurance Practice Section
of the American Bar Association and former President of the Associa-
tion of Trial Uizuyers of America
Maurice Rosenberg, Professor of Ujtu. Columbia Laiv School
The Honorable Carl Rubin, Chief Judge. Southern District of Ohio
Thomas J. Scheuerman, Associate General Counsel. 3^4 Corporation
Molly Selvm, Institute for Civil Justice. Rand Corporation



248



EXHIBIT



District Court Civil Justice Expense
and Delay Reduction Plans:
Mandatory Document and Witness Disclosure ^



District



Mandated Disclosure



D. Alaska



According to the Judicial
Conference Report, the court is
experimenting with some form of
mandatory disclosure.



E.D. Arkansas



None



E.D. California



None



N.D. California



Parties must disclose documents
in their custody or control
that are reasonably available
and tend to support positions
the disclosing party has taken
or is reasonably likely to
take. The parties must also
disclose information regarding
persons known to have
discoverable information about
factual matters relevant to the
case. The plan exempts 41
categories of cases from the
disclosure requirements
including class actions and
multidistrict litigation.



S.D. California



None



Compiled from information provided in Section of
Litigation, American Bar Association, Report of the Task
Force on the Civil Justice Reform Act app . B-1 (July
1992) ("ABA Report") and Judicial Conference of the
United States, Civil Justice Reform Act Report:
Development and Implementation of Plans By Early
Implementation Districts and Pilot Courts 12 & exhibit D
(June 1, 1992) ("Judicial Conference Report").
Information on the Northern District of California was
obtained from General Order No. 34, Case Management
Pilot Program (N.D. Cal . 1992).



249



District



Mandated Disclosure



D . Delaware



Parties must disclose documents
in their control, but only in
personal injury, medical
malpractice, employment
discrimination and civil RICO
cases. They must also disclose
information regarding persons
interviewed in connection with
the litigation.



S.D. Florida



No additional requirements .
According to the Judicial
Conference Report, a local rule
requires parties to exchange
documents and witness lists.



N.D. Georgia



Each party must answer
mandatory interrogatories
developed by the court .



D . Idaho



Parties must disclose potential
trial exhibits and information
regarding persons with
knowledge that significantly
bears on any claim/defense.



S.D. Illinois



Parties must disclose
documents /tangible items in
their control which are likely
to bear significantly on any
claim/defense. They must also
disclose information regarding
persons likely to have
information that bears
significantly on any claim/
defense, identifying subjects
of information.



N.D. Indiana



According to the ABA Report, in
one judge's court, parties must
disclose documents/tangible
items that bear significantly



250



District Mandated Disclosure

on any claim, defense or
entitlement to relief.
According to the Judicial
Conference Report, the district
is experimenting with three
different plans requiring
varying degrees of disclosure.

S.D. Indiana None

D. Kansas None

D. Massachusetts Parties must disclose documents

reasonably likely to bear
substantially on any claim/
defense.

W.D. Michigan None

D. Montana Parties must disclose

documents/tangible evidence
reasonably likely to bear on
any claim/defense.

D. New Jersey None

E.D. New York Parties must disclose documents

in their control bearing
significantly on any claim/
defense, documents relied on by
parties in preparing pleadings,
and documents expected to be
used to support allegations.

S.D. New York According to the ABA Report,

only documents must be
disclosed and only in expedited
cases . According to the
Judicial Conference Report,
standardized discovery
procedures will apply in
prisoner pro se cases.

N.D. Ohio None



251



District



Mandated Disclosure



W.D. Oklahoma



Parties must disclose
documents/ tangible items in
their control which are likely
to bear significantly on any
claim/ defense .



D . Oregon



None



E . D . Pennsylvania



Parties must disclose
documents/ tangible things in
their control which are likely
to bear significantly on any
claim/defense. They must also
disclose information regarding
persons reasonably likely to
have information that bears
significantly on any claim/
defense, identifying subjects
of information.



W.D. Tennessee



N/A



E . D . Texas



Parties must disclose
documents/ tangible items in
their control which are likely
to bear significantly on any
claim/defense. They must also
disclose information regarding
persons likely to have
information that bears
significantly on any claim/
defense, identify subjects of
information, and provide
summary of sxibstance of
information known by person.
According to the Judicial
Conference Report, the
disclosure requirements apply
only to cases in three of the
court's six processing
"tracks. "



S . D . Texas



According to the Judicial
Conference Report, the court is
experimenting with mandatory
disclosure in a limited number
of cases.



81-258 0-94-9



252



District



Mandated Disclosure



D. Utah



None



D. Virgin Islands



Parties must disclose
documents/tangible items in
their control which are likely
to bear significantly on any
claim/defense. They must also
disclose information regarding
persons likely to have
information that bears
significantly on any claim/
defense, identifying subjects
of information.



E.D. Virginia



None



N.D. West Virginia



Parties must disclose
documents/tangible items in
their control which are likely
to bear significantly on any
claim/defense. They must also
disclose information regarding
persons reasonably likely to
have information that bears
significantly on any claim/
defense, identifying subjects
of information.



S.D. West Virginia



None



E.D. Wisconsin



According to the Judicial
Conference Report, the parties
muse answer mandatory
interrogatories .



W.D. Wisconsin



According to the Judicial
Conference Report, there are no
disclosure requirements for
documents or fact witnesses,
but parties must disclose
information regarding expert
witnesses .



D . Wyoming



Parties must disclose
documents/tangible items in
their control likely to bear



253



Distriqt; Mandated DisclosurP

significantly on any claim/
defense. They must also
provide a list of fact
witnesses with a summary of
expected testimony.



254



EXHIBIT 3



CJRA Plans of District
Courts in States of Subcommittee Members:
Mandatory Document and Witness Disclosure ^



State



District



Mandated Disclosure



CA



E.D. California



None



N.D. California



Parties must disclose documents
in their custody or control
that are reasonably available
and tend to support positions
the disclosing party has taken
or is reasonably likely to
take. The parties must also
disclose information regarding
persons known to have
discoverable information about
factual matters relevant to the
case. The plan exempts 41
categories of cases from the
disclosure requirements
including class actions and
multidistrict litigation.



S.D. California



None



FL



S.D. Florida



No additional requirements.
According to the Judicial
Conference Report, a local rule
requires parties to exchange
documents and witness lists.



Compiled from information provided in Section of
Litigation, American Bar Association, Report of the Task
Force on the Civil Justice Reform Act app. B-1 (July
1992) ("ABA Report") and Judicial Conference of the
United States, Civil Justice Reform Act Report:
Development and Implementation of Plans By Early
Implementation Districts and Pilot Courts 12 & exhibit D
(June 1, 1992) ("Judicial Conference Report").
Information on the Northern District of California was
obtained from General Order No. 34, Case Management
Pilot Program (N.D. Cal . 1992).



255



District



Mandated Disclosure



MA



D. Massachusetts



Parties must disclose documents
reasoHcibly likely to bear
substantially on any claim/
defense.



MI
NJ
NY



W.D. Michigan
D. New Jersey
E.D. New York



None



None



Parties must disclose documents
in their control bearing
significantly on any claim/
defense, documents relied on by
parties in preparing pleadings,
and documents expected to be
used to support allegations.



S.D. New York



According to the ABA Report,
only documents must be
disclosed and only in expedited
cases . According to the
Judicial Conference Report,
standardized discovery
procedures will apply in
prisoner pro se cases .



OK



W.D. Oklahoma



Parties must disclose
documents /tangible items in
their control which are likely
to bear significantly on any
claim/defense .



WI



E.D. Wisconsin



W.D. Wisconsin



According to the Judicial
Conference Report, the parties
must answer mandatory
interrogatories .

According to the Judicial
Conference Report, there are no
disclosure requirements for
documents or fact witnesses,
but parties must disclose
information regarding expert
witnesses.



256



Appendix 6. — Statement of Herbert E. Hoffman, on Behalf of
THE National Association of Professional Process Servers
(NAPPS), June 10, 1993



NATIONAL ASSOCIATION OF PROFESSIONAL PROCESS SER\/ERS




TESTIMONY OF THE NATIONAL ASSOCIATION OF PROFESSIONAL PROCESS
SERVERS FOR THE HOUSE JUDICIARY SUBCOMMITTEE ON INTELLECTUAL
PROPERTY AND JUDICIAL ADMINISTRATION ON PROPOSED AMENDMENTS
TO THE FEDERAL RULES OF CIVIL PROCEDURE

Mr. Chairman and Members of the Subcommittee:



I am Herbert E. Hoffman and submit this statement on behalf