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

memorandum oppose the proposed disclosure amendment to Rule 26(a)(1), we commend
the Committee for its excellent work in making significant other improvements in the Rules.



' Committee Isotes on Rule 26(a)(1), Standing Comm. on Rules of Practice and
Procedure, Judicial Conference of the United States, Proposed Amendments To The
Federal Rules of Civil Procedure and Forms. 93-94 (November 1992) [hereinafter
" November 1992 Amendments "]. Attached as Appendix A.

^ See Administrative Office of the U.S. Courts, November 27, 1992 Memorandum to
the Chief Justice of the United States and the Associate Justices of the Supreme Court
[hereinafter ' Transmittal Memorandum to Supreme Court "].



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Contrary to the spirit of the 1988 congressional mandate directing increased
public involvement in the rules amendment process, no public comment was solicited from
the bench or bar on the final version of the Rule 26(a)(1) amendment. Public comment was
solicited on an earlier version of the disclosure amendment put forth in August of 1991.
Over two hundred written statements of opposition from every segment of the bench, bar,
and business community were filed with the Advisory Committee in response.^ At two
public hearings on the August 1991 version of the amendments, one in November of 1991
in Los Angeles and the second in Februar>' of 1992 in Atlanta. 76 witnesses testified against
disclosure because of the harmful effects the concept will have on litigants, discovery, and
the civil justice system generally.

The widespread opposition was based on firmly expressed views that the
disclosure proposal would create serious new problems with the pretrial process and
exacerbate the very discovery abuses that the .Advisory Committee intended to cure. The
Advisory Committee initially seemed responsive to these concerns. In fact, it voted to
withdraw the disclosure concept from the remaining proposed amendments at the close of
the last public hearing in February 1992. Shortly before the Committee's next meeting.
however, but after the period for public comment had closed, a memorandum was circulated
calling for the Advisory Committee to reinstate the disclosure proposal.* In response, a



' Over 95% of the 208 judges, bar organizations, scholars, corporations, and individual
members of the bar who commented on the initial public version of the proposed
disclosure amendment were against it. See Appendix B, Summary of Comments In
Opposition To Disclosure: Appendix C, Individuals and Organizations Submitting
Comments In Opposition To Disclosure.

â– * See Ann Pelham. Panel Flips. OKs Discovery Reform . Legal Times, Apr. 20. 1992. at
6 (copy of article attached at .Appendix D).



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substantially revised version of the disclosure proposal was drafted overnight during the April
1992 meeting, approved, and forwarded to the Rules Committee without being circulated
to the public or published in even a single legal periodical. As a consequence, the bench,
bar, and public were prevented from having any meaningful opportunity to comment on the
revisions or to consider whether the amendments were responsive to the significant concerns
initially expressed.

The decision not to allow public comment on the revised disclosure
amendment assumes even greater importance in light of the amendment's potential to
undermine other discovery reform activities now underway in a significant number of federal
district courts.' Under a mandate from Congress enacted in the Civil Justice Reform Act
of 1990, federal district courts must identify the most effective means for eliminating abuse,
expense, and delay in litigation generally and discovery in particular, and implement
experimental reform plans to correct the abuse, expense, and delay.* Most of the plans
already effected by district courts have implemented an experimental disclosure plan
different from the proposed amendment to Rule 26(a)(1) and some have not proposed
disclosure at all.

Preliminary information from these experiments would have been available in
a short time if the Committee had stayed its hand as many commenters requested. With
empirical data from the experimental districts, the Committee could have fine-tuned its



' Cf, Ann Pelham, Irate Litigators Abort Federal Discovery Reforms. American
Lawyers News Service, Mar. 23, 1992, reprinted in The Connecticut Law Tribune, pg. 14
(Committee chairman Judge Sam Pointer acknowledges value of waiting for results from
reform experiments before changing discovery rule).

* See Civil Justice Reform Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089 (1990).



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proposal, embracing the most workable disclosure ideas to emerge from the experiments for
implementation nationwide as part of the Committee's revisions to Rule 26(a)(1) or
abandoning the concept altogether if it was found unworkable. Instead, the Committee
chose to go forward without guidance from the experimental plans, just as it decided not to
accept funher comments from the bench and bar. As a result, the proposed amendment
to Rule 26(a)(1) lacks empirical support and is opposed by most of those practitioners who
have to deal with it on a day-to-day basis.

The disclosure proposal is just as flawed in concept as it is in execution.
Proposed automatic disclosure merely adds another layer to discovery: an untested and
certainly unproven preliminary procedure that will not eliminate discovery abuses. The
vague and unwieldy disclosure standard itself will precipitate additional litigation abuse,
expense, and delay. Moreover, disclosure is incompatible with the adversary system. It
places counsel's new obligations to the opponent and the court in conflict with counsel's
traditional ethical obligation to the client, and it undermines the attorney work product
doctrine.

Because of the flaws in both its execution and its substance, the proposed
amendment to Rule 26(a)(1) should be returned to the Committee on Rules for additional
public comment and debate. Whether disclosure is the most viable discovery reform, and
if so, what form it should take, should be debated publicly in light of real world experience
with the CJRA plans. Public comment can help identify pitfalls inherent in »he current draft
and solutions to the most objectionable aspects of the amendment. Full consideration of the
public comments should facilitate greater acceptance of the disclosure concept by members
of the bench and bar. Ultimately, additional comment and review of all the reform options



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will provide a more realistic basis for final decisions about the future of the pending
disclosure amendment and the most appropriate means of eliminating discovery abuse.

II. 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.

As Congress deliberated over the 1988 amendments to the Rules Enabling Act,

it debated whether to eliminate this Court's role in the process of reviewing and approving

proposed amendments to the rules of procedure in light of the Court's history of serving as

"a mere conduit" to Congress.' The Court specifically requested Congress to keep it in the

review process and Congress did so.' Although the Court's authority over the rules

amendment process has been exercised sparingly, the instances where it has been used to

return proposed rules for further comment and revision are strikingly similar to the situation

here - there was a wealth of public opposition to the initial version of the rule and a

significant failure by the Rules Committee to respond fully to that opposition. Consequently,



' See H.R. Rep. No. 422, 99th Cong., 1st Sess. 20 (1985); see also Order of Nov. 20,
1972, 34 L. Ed. 2d bcv, Ixvi (1972) (approving and transmitting rules of evidence
amendments to Congress) (Douglas, J., dissenting) ("[T]his Court does not write the
Rules, nor supervise their writing, nor appraise them on their me) its, weighing the pros
and cons. The Court concededly is a mere conduit.")

• June 25, 1984 Letter from Chief Justice Warren E. Burger to Representative Robert
W. Kastenmeier, reprinted in Rules Enabling Act Hearings on Oversight and H.R. 4144
Before the Subcomm. on Courts . Civil Liberties, and the Admin, of Justice of the House
Comm. on the Judiciary, 98th Cong., 1st & 2d Sess., 195 (Apr. 21, 1983 and March 1,
1984).



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precedent amply supports a decision to return proposed Rule 26(a)(1) for further public
comment and revision at this time.'

History also signals that Congress has become involved with the rulemaking
process when the process was not responsive to public concerns. Until the massive
opposition expressed to the pending disclosure proposal, the civil rules amendment process
has only twice before evoked such universal protest from all segments of the bench and bar.
In fact, Congress blocked Court approved rules on both of those two occasions: in the early
1970's when the new federal rules of evidence were proposed;'" and in the early 1980's
when a far-reaching change to federal rule 4 was put forth." Approval of proposed Rule
26(a)(1) by this Court in the shadow of so much opposition to both the proposed Rule and
the process by which it was developed could signal a breakdown in the only function of the
judicial branch in which the public is permitted by law to participate.'* It also raises the



' See Transmittal Memorandum To Supreme Court , supra note 2, at "Excerpt from the
Report of the Judicial Conference Committee on Rules of Practice and Procedure."
September 1992, pg. 1 (discussing return of amendments by Supreme Court to Judicial
Conference for additional study in light of objections from British Embassy); Winifred R.
Brown, Federal Judicial Center. Federal Rulemaking: Problems and Possibilities 32 n.73
(June 1981) (discussing incidences where Supreme Court returned proposed rules); Rules
of Evidence, S. Rep. No. 1277, 93rd Cong., 2d Sess.. reprinted in 1974 U.S. Code Cong,
and Admin. News 7051, 7052 (acknowledging Supreme Court decision to return proposed
rules to rules committee).

'" See Brown, supra note 9; Jack H. Friedenthal. The Rulemaking Power of the
Supreme Cou.i: A Contemporary Crisis . 27 Stan. L. Rev. 673, 677 (1975).

" See 28 U.S.C.A. § 2073 (West Supp. 1992), David D. Siegel, Commentary on 1988
Revision, at 37 (describing controversy in 1980's over revisions to Rule 4 and
congressional intervention).

" Ann Pelham, Judges Make Quite A Discovery: Litigators Erupt, Kill Plan To
Reform Federal Civil Rule. Legal Times. Mar. 16, 1992, at 1.



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specter of jeopardizing judicial branch independence in the rulemaking process," and could

diminish respect for and belief in the fairness of the rulemaking process itself.''* More

important, however, it will saddle the civil justice system with a thoroughly unworkable new

rule without improving the process of preparing cases for trial.

A. Inadequate Attention To Public Concerns About Proposed Rules Could
Compromise Judicial Control Of The Rulemaking Process.

When openness for the civil rulemaking process was mandated in the 1988

amendments to the Rules Enabling Act," Congress clearly contemplated that public

comment would be solicited not just on initial drafts of amendments, but also on any

significant revisions that were based on the earlier public comments.'' Public comment

and additional deliberation on substantial revisions is the only means of ensuring that the

rulemaking process considers the practical experience of, and is responsive to the needs of,

judges, lawyers, and litigants. Commentators have suggested that a major factor contributing

to the congressional override of the rulemaking process in both the 1970's and the 1980's



" See Ann Pelham, Federal Court Watch: A Legend Worries . Legal Times, June 29,
1992, at 6 (quoting Prof. Charles A. Wright) ("I really worry that if we send this
prematurely, we will jeopardize the continued existence of the court rule-making
process.") (attached at Appendix E); Siegel, supra note 11, at 37; Friedenthal, supra note
10.



14



Sec A Legend Worries, supra note 13.



" See Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, § 403,
102 Stat. 4642 (1988).

'* See H.R. Rep. No. 422, 99th Cong. 1st Sess., 10; cf. Friedenthal, supra note 10 at
677 (failure to seek public comment on substantially revised evidence rules compromised
process and resulted in congressional intervention in rulemaking process).



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was "the insertion of major alterations [in the rules] at the last minute so that they appeared
for the first time as approved without any opportunity for public comment."'^

Although the federal rulemaking process expressly contemplates some
congressional oversight, primary control over the process was vested in the judicial branch
in part so that the rules would benefit from the vastly greater experience and insight into the
litigation process that judges have over legislators.'* The judicial branch also was perceived
as being less responsive to "interest group politics" than the legislature, providing greater
assurance that rules of procedure would be neutral and provide a "level playing field" for all
litigants." As such, significant congressional inter%'ention in the rulemaking process is not
the norm and, according to the drafters of the rules amendment process, has the potential
to compromise both the technical quality of the rules as well as their political neutrality. If
a groundswell of public opposition to a proposed rule is likely to trigger congressional
intervention, as it has in the past, the rulemaking process and the civil justice system as a
whole would be better sen.ed if the Court took action to respond to the opposition within
the structure of the rulemaking process and the judicial branch. Here, returning the
proposed disclosure rule for public comment will protect the integrity of the rulemaking



'^ Siegel, supra note 11; Friedenthal. supra note 10, at 677. Indeed, in voting against
the pending disclosure proposal. Standing Committee member Professor Charles A.
Wright noted "[i]f . . . judicial rulemaking ... is not responsive to [lawyers'] concerns . . .
lawyers will seek a veto of the rules .".om Congress." A Legend Worries , supra note 13,
at 6 (paraphrasing Prof. Charles A. Wright).

" See generallv J. Weinstein. Reform of Court Rule-Making Procedures (1977).

" Paul D. Carrington. Making Rules To Dispose Of Manifestly Unfounded Assertions:
An Exorcism Of the Bog\' Of Nor.-Trans-substantive Rules Of Civil Procedure . 137 U. of
Pa. L. Rev. 2067. 2074-75 { 19S9).



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process, increase responsiveness to the needs of the bench and bar, and ensure promulgation
of well-crafted rules that preserve the political neutrality of the civil litigation process.

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

The strength, depth, and uniformity of opposition to disclosure expressed by
virtually all those who commented on it is quite remarkable. Public interest law advocates,
plaintiff and defense bar groups, major corporations, small businesses, trade associations,
individual practitioners, and federal district court judges opposed it with equal vehemence.
If those required to use Rule 26(a)(1) have serious reservations about the rules utility, the
likelihood of its smooth implementation and ultimate value is greatly diminished.

Every procedural reform is dependent to a large extent on the willingness of
the bench and bar to make it work. Frustration and annoyance on the part of judges and
litigators alike, coupled with widespread doubts that the Rule will eliminate discovery abuse,
will make the road to smooth implementation difficult at best. These tensions could be
substantially relieved by allowing additional time for members of the bench and bar to tuliy
air their concerns about the revised disclosure proposal, and to allow present understanding
of the disclosure process to mature and be tempered by more debate and reflection.

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

Failure to await at least preliminary data from the CJRA experiments before

moving ahead with the disclosure process contained in Rule 26(a)(1), is inconsistent with the

purposes behind those experiments. Recognizing that significant discovery reforms needed

to be grounded in empirical data. Congress directed establishment of the experimental



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district plans to serve as examples of possible reforms while at the same time yielding
empirical data based on actual practice.'" The data from the experimental plans were
intended to help guide discovery reforms targeted for nationwide implementation.*'

Twenty-three of the 34 federal district courts participating in the experiment
have opted to implement pre-discovery disclosure procedures, in one of several different
forms, as part of their "Expense and Delay Reduction" plans." These experimental plans
will produce valuable data about whether disclosure is a workable concept at all, and if so.
which t\pe of disclosure plan is the most effective and efficient. Delaying implementation
of this radical reform to ensure that it has the potential to be effective rather than to cause
mischief would be an invaluable safeguard of the integrity of the civil justice process. In fact.
Judge Pointer, chairman of the Advisory Committee, recognized the potential value of
adopting a wait-and-see attitude when the disclosure amendment initially was tabled, publicly
stating that "[i]t makes more sense to get the benefit of that [CJRAj experience before
moving ahead.""



^° See S. Rep. No. 416, 101st Cong., :d Sess. 2 (1990); 136 Cong. Rec. S17575 (daily
ed. Oct. 27, 1990) (Remarks of Sen.^Biden).

^' See 136 Cong. Rec. S17575, supra note 20.

" See CJRA Report , supra note 25, at 12. At the time the Advisory Committee first
adopted the disclosure concept, it had been brietly in effect m the local rules of only tour
district courts. See Linda S. .Muilentx, Hope Over Experience: Mandatorv Informal
Discovery And The Politics Of Ruiemakine . 69 N. C. L. Rev. 795, 798 n.4 (1991). None
of these early local disclosure rules were comparable to the priding disclosure plan
because they are self-reflective. That is, they only required disclosure of information
related to a party's own claims. These local rules do not require speculation as to what
disclosures might be relevant to an opponent's claims. Compare Cal. (CD.) Local Rules
6.1.1, 6.I.3.-.4. and Fla. (S.D.) Local Rules 14.A.1., 14.A.3.-.4. with Proposed Rule 26(a),
November 1992 Amendments , supra note 1, at 72.

" Irate Litigators , supra note 5, at 14 (quoting Judge Sam C. Pointer, Jr.).



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After initially deciding to defer implementation pending study of the CJRA
experimental reform plans," the Advisory Committee reversed itself and proposed
immediate nationwide adoption of the disclosure amendment." Committee members
apparently were concerned that any further delay to await early results from the
experimental districts would inevitably postpone significant discovery reforms until 1998 at
the earliest."

Reasonable delay to allow consideration and additional input would not
require the years of deliberation that went into the initial formulation of the disclosure
proposal. In fact, public comment could be obtained and further revisions could be made
in little more than one year's time. Only slightly more than one year elapsed from August

1991, when the disclosure rule was initially circulated for public comment, and November

1992, when the final rule was submitted to this Court for approval. Six months were allowed
for public comment (from August 1991 to February 1992)." In the course of a six-month
public comment period if this Court returns the rule, the Committee also concurrently could



" See id.(Advisory Committee Chairman notes that delay in adopting disclosure
amendment will benefit from Civil Justice Reform Act experiments).

" See Judicial Conference of the U.S., Civil Justice Reform Act Report: Development
and Implementation of Plans By Early Implementation Districts and Pilot Courts 2 (June
1, 1992) [hereinafter " CJRA Report "].

" See May 1, 1992 Transmittal Letter from Sam C. Pointer, Chairman, Advisory
Committee on Civil Rules, to Honorable Robert E. Keeton, Chairman, Standing
Committee on Rules of Practice and Procedure, Attac.iment B, "Issues and Changes," at
7; Committee Notes on November 1992 Amendments, supra note 1 at 95; see also Panel
Flips, supra note 4.

" See Transmittal Letter Accompanying August 1991 Amendments, Comm. on Rules
of Practice and Procedure, Judicial Conference of the United States, Preliminary Draft of
Proposed Amendments to the Federal Rules of Civil Procedure and the Federal Rules of
Evidence (August 1991) [hereinafter " August 1991 Amendments "].



283



solicit preliminary results from the CJRA experiments, which now have been in effect for
one full year. If the Committee then takes six to eight months to consider the new
information collected and to arrive at a Rule 26 reform more consistent with public opinion
and practical experience, the revised amendment could be returned to the Court by early
1994, forwarded to Congress by the statutory cut-off of May 1994, with a potential effective
date of December 1, 1994 - a delay of only one year's time."

A delay in implementation of the disclosure amendment also will ameliorate
potential conflicts between the Committee's reforms and the CJRA experiments. Although
the Committee's proposed rule permits the experimental districts to opt out of proposed
Rule 26(a)(1) disclosure in favor of a different local experimental plan, nationwide
imposition of the Committee's disclosure proposal inevitably will undermine the vitality of
the experimental plans. Once the Committee's disclosure proposal is in effect nationally,
even the very best experimental disclosure plan is unlikely to be adopted nationally to
supersede the Committee's already-implemented version of disclosure. The inertia and
practical problems connected with replacing one national disclosure process with another,
just as the bench and bar are starting to become accustomed to the first, would be
insurmountable.

Failure to give full consideration to the best plans to emerge from the
experimental districts would fly in the face of Congress' mandate and be in direct conflict
with .he core purpose of the experimental plans, which is to test, identify, and implement
the very best reform proposals. The only means of reconciling the two tracks of discovery



" See. e^, S. Rep. No. 1277, 93d Cong., 2d Sess.. reprinted in 1974 U.S. Code Cong,
and Admin. News 7051. 7052 (revised rules returned to Supreme Court one year from
court remand to solicit public comment); see also 28 U.S.C.A. § 2074 (West Supp. 1992).



81-258 0-94-10



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refonn now ongoing in the federal courts is to incorporate results from the CJRA
experiments into the federal rules at a time when their incorporation will be meaningful.
If discovery reforms cannot be delayed until the CJRA experiments are concluded fully in
1995, the reforms undertaken now at least should reflect information already produced in
the CJRA experiments during the first year. Such information would at least reveal whether
disclosure, in any of its various forms, is a workable concept. In the views of the
organizations submitting this memorandum, it is not.

III. Disclosure Is A Flawed Concept.

The Rules Committee's commitment to meaningful discover.' reform, and its
diligence in developing the pending amendments is obvious. Nonetheless, the belief that
disclosure will lessen discovery abuse is based on little more than theory. In fact, disclosure
is likely to create new problems not previously experienced in discovery.^' The Committee
Notes indicate that the disclosure rule is derived from theories advanced over the years by
two respected jurists.** The original disclosure theories, however, would have replaced
discovery entirely. In contrast, the disclosure process now before the Court grafts another
layer onto the pretrial process as a prelude to discovery. Thus, the arguments that



^ As one commentator put it, the Advisory Committee's decision to put its faith in the
proposed disclosure process, without hard evidence that disclosure could work, is a
"triumph of hope over experience." Mullenix, supra note 22, at 820.