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

of the National Association of Professional Process Servers
(NAPPS).

First, a word about NAPPS. This organization has been serving
the Bar and the courts for about 11 years. Its approximately
900 members have offices throughout the United States and in
Australia, Belgium, Canada, England, Italy, New Zealand, Puerto
Rico, and the U. S., Virgin Islands.. Not only do the members
and their staffs serve process, but they perform a myriad of
other functions for attorneys - court filings, document searches,
etc.

NAPPS has a strict set of By-Laws and a Code of Ethics the
violation of which may subject a member to expulsion. Over
the years NAPPS representatives have worked closely with the
Judicial Conference Advisory Committee on Civil Rules and has
often been complimented by various of the committee's
chairpersons and the immediate past Reporter, Dean Carrington,
for its helpfulness concerning practical problems incident to
the service of process.



257



In 1982 Congress considered and disapproved an amendment to
Rule 4 proposed by the Supreme Court. It then proceeded to enact
Public Law 97-462 (96 Stat 2527) which provided for the so-called
"notice and acknowledgment" procedure now in use (Rule 4
(c) (C) ( 2 ) ( ii ) ) . In essence, this procedure provides for a
plaintiff to send to a potential defendant a copy of the summons
and complaint by first class mail. Along with the summons and
complaint there is sent a notice advising the defendant of what
it is he is receiving , requesting he return an acknowledgment
of its receipt, and advising him of the consequences of not
sending back an acknowledgment.

This procedure has been in effect for 11 years with no major
problems having arisen, although one attorney wrote to the Admin-
istrative Office of the United States Courts several years ago
raising a question as to when service is to be considered
complete. The attorneys who practice in the Federal courts
and the trial judges are all familiar with this procedure, one
which has been in effect satisfactorily in California and some
other state courts even longer.

The change proposed by the Supreme Court would scrap the notice
ani acknowledgment procedure which has worked so well and with
which all are familiar and substitute in its place a waiver
procedure. As proposed, a plaintiff would send a complaint
(no summons) to a potential defendant and request that the
defendant waive service of a summons. This notice must be sent



258



by first-class mail "or other reliable means". The quoted words
are extremely ambiguous. Just what is an "other reliable means"?
Why make attorneys guess what will satisfy a judge? And what
will satisfy one judge may not satisfy another.

In any event, mindful of the old adage - "If it ain't broke,
don't fix it", we would suggest that the system in place - notice
and acknowledgment- with which lawyers and judges are familiar
and which has served the courts well, should be retained.

However, recognizing that the changes proposed to the disclosure
and discovery rules are even more controversial, admittedly
so in the notes which accompanied their submission , it would
seem desirable for the Congress to defer the effective date
of the proposed changes to late in the next session. The matters
in issue pale into insignificance when compared with the tax,
health, deficit, budget, and other major problems to which the
Congress must give its immediate attention.

In this witness" memory, which goes back to 1948 insofar as
matters such as the instant ones are concerned, this is the
first time that three Associate Justices have dissented on
matters of substance to the submission of rule changes. Further,
with a nomination to the Supreme Court expected momentarily
and likely to consume a major part of the time of the Judiciary
Committee in the other body, it is most unlikely that the
Congress can make an informed, considered judgment on the



259



desirability of the proposed changes in this session of the
Congress. To permit the changes to become effective by default
on December 1 would be irresponsible.

Therefore, we respectfully suggest that legislation such as
that which is attached to this statement be introduced and
enacted prior to December 1, 1993. This will assure the Congress
the opportunity to carefully consider the proposed changes and
exercise a considered judgment as to their impact on the work
of the courts and the interests of party litigants.

We appreciate the opportunity you have afforded us to express
our views and ask that all members of the Subcommittee be
furnished them and that they be included in the printed record
of the hearings.

June 10, 1993



A BILL TO DELAY THE EFFECTIVE DATE OF PROPOSED
AMENDMENTS TO THE FEDERAL RULES OF CIVIL
PROCEDURE

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled. That
notwithstanding the provisions of section 2074 of title 28,
United States Code, the amendments to the Federal Rules of Civil
Procedure as proposed by the Supreme Court of the United States
and transmitted to the Congress by the Chief Justice on
April 22, 1993, shall take effect on October 1, 1994, unless
previously approved, disapproved, or modified by Act of Congress,



260



Appendix 7. — Statement of Thomas Hanna, President,
American Automobile Mantjfacturers Association



The American Automobile Manufacturers Association (AAMA) is
the trade association for United States car and light truck manu-
facturers. Our members, Chrysler Corporation, Ford Motor Company,
and General Motors Corporation, produce approximately 81% of all
U.S. -built motor vehicles. We appreciate the opportunity to ex-
plain our opposition to the proposed changes to Federal Rule of
Civil Procedure 26(a) (1), which would impose mandatory initial
disclosure aunong parties at an early stage of litigation in feder-
al court .

AAMA members are frequent litigants in federal courts. Most
often, they are sued by individuals (sometimes purporting to rep-
resent a class) who have been injured while driving or riding in
one of the vehicles manufactured by our members. These products
liability cases are often complex, involving numerous theories on
which liability is alleged. Discovery in these cases often re-
quires an enormous undertaking by our members, because of the
large scale and geographic extent of their operations, because of
the technical nature of the systems involved, and because of the
breadth and ambiguity of the issues.

Purpose and Substance of the Proposed Changes

The stated purposes of the proposed changes to Rule 26(a) (1)
are to simplify and reduce the costs of litigation. Amended Rule
26(a) (1) would require manufacturer defendants to disclose infor-



261



mation that is "relevant to disputed facts alleged with particu-
larity in the pleadings." Virtually any type of information that
meets this standard must be disclosed, including: the name, ad-
dress and telephone number of each individual likely to have dis-
coverable information; and a copy or description of all documents,
data compilations, and tangible things in the party's control,
custody or possession. Disclosure must be made within 10 days
after the parties meet at a discovery conference as required by
amended Rule 26(f). The timing of the Rule 26(f) conference is
subject to a number of variables. The Committee Notes accompany-
ing the proposed changes indicate that the conference may be a
forvim for fleshing out the plaintiff's theories stated only broad-
ly in the complaint. In those cases, the Committee Notes indicate
that the parties "can and should stipulate to a period of more
than 10 days after the meeting in which to make these disclosures
* * * . " However, the proposed changes do not require such a
stipulation. The recognition in the Committee Notes that such a
stipulation may often be necessary betrays the timing problem in-
herent in the proposed changes: 10 days is simply not enough time
to identify potentially relevant information, and many cases will
be based on such broad allegations that the manufacturer defendant
would not be able to identify the disputed facts prior to the Rule
26(f) conference.

As litigants with extensive experience in complex litigation,
much of which accounts for a significant number of cases on crowd-
ed urban federal dockets, we are concerned that the proposed chan-



262



ges to Rule 26(a)(1) will fail to achieve their stated purpose
both because they are impracticable (especially in complex litiga-
tion such as products liability cases) and because they will con-
tinually engender additional satellite litigation over whether the
requirements have been met. Overall, the changes will not accom-
plish the intended purposes of simplifying and reducing the costs
of litigation because they try to impose a uniform (and inherently
flawed) solution to widely disparate kinds of cases.

The Proposed Changes will be
Unworkable in Complex Litigation

The proposed changes to Rule 26(a) (1) will be ineffective in
the vast majority of cases. In some suits, the litigants conduct
no formal discovery at all. For these cases, the mandatory dis-
closure rule is unnecessary and imposes an additional litigation
cost in that class of cases that is now the least expensive for
both parties and the courts to resolve. Because the cost of dis-
closure in these cases is borne by the party producing the materi-
al, there is no incentive for the plaintiff to forgo receiving the
information.

In many other cases, the requirement of mandatory disclosure
is unworkable because of the enormous quantity of potentially rel-
evant information that may be spread across the country in various
different locations of a manufacturer's operations, and the diffi-
culty of ascertaining, at the earliest stage of litigation, what
information is actually relevant. This is a particular problem in
complex cases (such as products liability suits) which our members



263



must defend mosc often, and in which discovery disputes most often
arise.

Although the advisory committee made some modifications to
the initial proposal in an effort to clarify the standard for re-
quired disclosure, the language of the proposed rule - requiring
disclosure of "information relevant to disputed facts alleged with
particularity in the pleadings" - remains ambiguous.

In many products liability cases, the complaint alleges the
existence of a defect that caused an injury. While the complaint
may allege a wide variety of legal and factual theories on which
liability may rest, the plaintiff's attorney will ultimately re-
quest discovery only on a few of these theories, not all of them.
Often, when the complaint is filed, the plaintiff's attorney has
not yet decided which of the various theories he or she will actu-
ally pursue vigorously. The complaint itself - even limited to
those facts that may be said to have been "alleged with particu-
larity" - does not offer enough information for a manufacturer
defendant to ascertain what will really be at issue in the case.
If the manufacturer undertakes the enormous effort that would be
required to locate all potentially relevant information (including
all documents) for every theory, much of that effort would be
wasted.

Even when a complaint alleges only one defect, the informa-
tion relevant to that claim may be found by a court to be extreme-
ly broad. For example, in a recent case involving one of our mem-
bers, the plaintiff claimed a defect in the rear outboard seatbelt



264



system. The court found that information about all seatbelts -
front as well as rear - in all the company's cars was relevant to
the complaint. If the proposed changes to Rule 26(a) (1) go into
effect, would this earlier ruling define "relevant" information in
all seatbelt cases? Conversely, if an auto manufacturer relied on
this ruling and identified massive amounts of information about
all seatbelt systems when only one was challenged, would the manu-
facturer be sanctioned for inundating the plaintiff with irrele-
vant material about seatbelt systems other than the one at issue?
When a system design is challenged, are similar designs relevant?
Are dissimilar designs more relevant?

Further, the effort required by the rule change literally
would be impossible to complete within the time allowed by the
proposed rule. Products liability cases often are based on alle-
gations concerning a variety of different systems, subsystems and
components in a motor vehicle. These systems, subsystems and com-
ponents are typically designed and manufactured by a large number
of divisions within the company and its vendors. In order to
identify individuals and documents that could be relevant to a
plaintiff's theory, a manufacturer must first identify each sys-
tem, subsystem and components that could possibly be at issue in
the case. The manufacturer must then identify each division and
vendor involved in the design, manufacture ar'^ assembly of that
system, subsystem and associated components. The end result of
this process is often an enormous quantity of paper that must be
reviewed for potential relevance, as well as for claims of attor-



265



ney- client and work-product privileges. Further, literally tens,
if not hundreds of individuals must be interviewed in order to
determine whether they are likely to have discoverable informa-
tion. Given the size and scope of our members' operations, and
the hundreds of products liability suits filed against them each
year, such an undertaking cannot be completed within the time con-
templated by the proposal. For example, for systems which have
been the subject of repeated litigation, certain of our members
have established "reading rooms" where all relevant documents are
made available for plaintiffs' attorneys to review. One such
reading room related to passive restraints took more than five
years to assemble, must be continually updated, and presently con-
tains over 1.5 million pages of documents.

The Initial Disclosure Proposal Would
Engender Additional Satellite Litigation

A second problem is that the proposed mandatory disclosure
provisions will generate additional satellite litigation about
whether the recjuirements have been fulfilled. Although the inten-
tion of the advisory committee and the Judicial Conference was to
streamline the discovery process and reduce the cost of litigation
in federal courts, the proposed changes to Rule 26(a) (1) will ac-
tually increase the costs of litigation substantially and increas-
ingly involve the court's time.

Today, unfortunately, many discovery disputes have less to do
with obtaining relevant information than with an attempt to gain a
tactical advantage over the opposing party. For example, in a
recent case where one of our members was the defendant, the plain-



266



tiff succeeded in obtaining a broad order compelling discovery,
the defendant produced thousands of documents, and the plaintiff
reviewed only a small niomber of them.

Because of the possibility of tactical advantage (including
the potential for plaintiffs to impose significant costs on manu-
facturer defendants in products liability suits, and especially in
the light of the risk that severe sanctions, including default,
could be imposed) , a great deal of litigation resources would be
focused on disputes over whether the disclosure requirements have
been fulfilled rather than adjudicating the merits of the suit.
These disputes would not serve the purpose of simplifying or
streamlining the discovery process; instead, they would add an
additional and significant level of pretrial expense to litigants
and would require judges to referee needless arguments. This com-
mittee has as its goal the elimination of potential avenues for
such abuse. But the proposal to impose disclosure requirements
would give lawyers additional work at the cost of their clients'
(and the public's) interest in efficient, streeimlined judicial
decisionmaking .

These disputes will not be limited to the initial implementa-
tion period during which the disclosure requirement is clarified
by court decisions. The disclosure requirement's contours would
be c'ifferent in each case because the standard is based on the
factual allegations of the pleadings. As a consequence, disputes
over disclosure are likely to arise in every case, and must be
relitigated under the factual allegations in each proceeding.



267



The new rule would provide too many chances for lawyers to
fight about trivial procedural questions in the pursuit of often
fruitless efforts to secure a strategic advantage (which in many
cases amounts to no more than an attempt to impose additional lit-
igation costs on the other side) . For example, lawyers will un-
doubtedly challenge the sufficiency of their opponents' disclosure
and whether the opponents have fulfilled their continuing duty to
disclose additional information as it becomes known. At the same
time, attorneys may be forced to seek protective orders in order
to safeguard privileged or confidential information. In other
words, the lawyers will have repeated opportunities from both
sides to dispute the requirements under revised Rule 26(a) (1).

The Conimittee Should Delete the
Initial Disclosure Proposal

Finally, we would point out that the arguments raised against
this rule have come from litigants and lawyers on both sides of
the courtroom. Both plaintiffs and defendants have argued that
this rule will not accomplish its stated purposes and that it un-
dermines the experimentation provided for by the Civil Justice
Reform Act. This is not an issue on which one side seeks to exact
an advantage over the other. Rather, this subcommittee has heard
from a wide variety of sources that raise deep-seated and thought-
ful concerns about the effect of the proposed changes. In the
light of those widespread and sustained concerns. Congress should
exercise its authority to prevent the proposed changes to Rule
26(a) (1) from taking effect.



268



While some have suggested that Congress should simply delay
the implementation of the Rule 26(a) (1) changes, we contend that
such an approach would be inconsistent with the procedure estab-
lished in the Rules Enabling Act. That procedure ensures that
initial consideration of changes to federal rules will be under-
taken by the Judicial Conference through its advisory committees,
with appropriate public input by notice and comment. The proce-
dure then mandates that the rule changes should be foirwarded by
the Supreme Court to the Congress. At any stage, the changes may
be altered or eliminated.

This procedure is important to the integrity of the means by
which Congress has seen fit to delegate rulemaking power to an
independent arm of the judiciary while retaining ultimate authori-
ty to oversee the exercise of that power. It is a much more inva-
sive remedy for Congress itself to make changes to a set of pro-
posed rule changes. We believe it is more appropriate for Con-
gress to exercise its authority simply by striking the disclosure
provision from the changes.

This would permit the remainder of the changes to take ef-
fect, and it would give the Judicial Conference an opportunity to
take into account the concerns expressed by Congress and members
of the public (as well as four members of the Supreme Court) . It
is appropriate for th? Conference to have an opportunity to recon-
sider its proposal in the light of those concerns. As the body
charged with initial consideration of rule changes, it should have
the opportunity to use its expertise to correct the problems per-
ceived by Congress and others. The best course of action is for
this subcommittee to recommend that the disclosure requirements be
stricken from the package of proposed rule changes.



269



Appendix 8. — Letter From Erwest N. Griswold, Esq., Jones,
Day, Reavis & Pogue (With Attachments), to Hon. William
J. Hughes, Chairman, Subcommittee on Intellectual Prop-
erty and Judicial Administration, June 15, 1993





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Hon. William J. Hughes
United States House of Representatives
241 Cannon House Office Building
Washington, O.C. 2051S



Dear Mr. C3iairman,

I understand that your subcommittee of the House Judiciary
Committee will conduct a hearing on June 16, 1993 concerning
amendments to the Federal Rules of Civil Procedure forwarded to
Congress by the Supreme Court on April 22, 1993. Earlier I had
occasion to submit a memorandum to the Court on behalf of a.
number of interested organizations, opposing adoption of the
proposed mandatory, pre-discovery disclosure amendment found in
Rule 16(a)(1). I submitted this memorandum because I believe
that disclosure is a flawed concept; the standard for disclosure
is unacceptably vague; the proposal would encourage unnecessary
satellite ligation; and disclosure is inconsistent with the
ethical obligations of lawyers to their clients under the
adversary system, adversely affecting the attorney-client
relationship and the work-product doctrine.

I continue to oppose mandatory, pre-discovery disclosure and
hope that Congress will take action to delete Rule 16(a)(1) from
the pending amendments.

In the event you might wish to make my this memorandum a
part of the Committee record, I am enclosing twenty-five copies
for the members and staff of your subcommittee.

Please let me know if I may be of further assistance.



-v.



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Repectfully submitted, .



Erwin N. Griswold



270



MEMORANDUM TO THE CHIEF JUSTICE OF THE UNITED STATES
AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT:



COMMENTS ON PROPOSED "DISCLOSURE" AMENDMENT TO
FEDERAL RULE OF CIVIL PROCEDURE 26(a)(1)



Submitted By

American Legislative Exchange Council

Association of Defense Tiual Attorneys

Business Roundtable Lawyers Committee

Chamber of Commerce of the United States

Federation of Insurance and Corporate Counsel

International Association of Defense Counsel

Lawyers for Civil Justice

Litigation Section of the District of Columbia Bar*

Public Citizen Litigation Group



February 10, 1993



271

CONTENTS
I. Summary

n. Approving The Proposed Disclosure Amendment To Rule 26(a)(1) In The Face Of
Overwhelming Opposition, Without Additional Public Comment, Compromises The
Rules Amendment Process.

A. Inadequate Attention To Public Concerns About Proposed Rules Has Led To
Congressional Involvement In Past Rulemaking EfTorts.

B. The Potential EfTicacy Of Reforms Depends Upon Broad Support And
Respect For The Reform Proposals.

C. Even Preliminary Results From The Civil Justice Reform Act Experiments
Can Help Calm Public Concerns And Guide The Decision On NNTiether
Disclosure Can Cure Discover} Abuse.

m. Disclosure Is A Flawed Concept.

A. The Ambiguity Of The Disclosure Standard Will Confound Efforts To Compiv
With It.

B. The Proposal Will Encourage Unnecessar>' Satellite Litigation.

C. The Proposal Distorts the Adversan, Process and Compels Disclosure of
Attorney Mental Impressions and Work Product.

rV. Conclusion



272



MEMORANDUM TO THE CHIEF JUSTICE OF THE UNITED STATES
AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT:

COMMENTS ON PROPOSED "DISCLOSURE" AMENDMENT TO
FEDERAL RULE OF CIVIL PROCEDURE 26(a)(1)

Submitted By



L Summary

The undersigned organizations respectfully request that the Court reject the
proposed amendment to Federal Rule of Civil Procedure 26(a)(1) that would impose "on
parties a duty to disclose, without awaiting formal discovery requests, certain basic
information. . . ."' The proposed automatic, pre-discovery disclosure amendment, described
by even its drafters as "radical," is the most widely controversial of the amendments to the
federal civil rules and forms that the Judicial Conference forwarded to the Court for
approval on November 27, 1992.^ The disclosure proposal should be returned to the
Committee on Rules because of defects in the process through which the proposal was
adopted, and substantive flaws in the proposal itself. Although the organizations joining this