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

lic comment along with other rules in 1991.)

Copies of the proposed amendments were sent to about 10,000 individuals and or-
ganizations, including all federal judges, law schools, state supreme court justices,
legal organizations, state attorney generals, newspapers, legal periodicals, and U.S.
attorneys. They were also printed in the major legal reporters, e.g. West and Mat-
thew Bender publications. Public hearings were held in Los Angeles, California, in
November 1991 and in Atlanta, Georgia, in February 1992.

The comment period was open for six months. Hundreds of written comments
were received from a wide spectrum of interests, including defense and plaintiffs
bar, corporate counsel, public interest groups, rural, metropolitan, small, medium,
and large law firms, academics, and judges. Many of the comments were detailed
and scholarly writings often 40 to 50 pages long. Copies of each comment were sent
to each committee member for review.

The Advisory Committee held several meetings thereafter and carefully consid-
ered the comments and suggestions from the public. Once again the Committee
parsed draft sentences and clauses meticulously. As with the original preliminary
draft, countless real and imagined fact patterns were suggested to test
therecommended draft language. Only after successful completion of this deliberate
and exacting examination did the Advisory Committee incorporate suggestions and
approve a final draft proposal. The Committee's determinations and reasoning are
set forth in its written report, which is attached to the published amendments as
submitted to the Standing Committee.

Concurrent with this review and evaluation, the Subcommittee on Style of the
Standing Committee was also at work to assist in the rule drafting.

The proposed rules and supporting documentation were transmitted from the Ad-
visory Committee to the Standing Committee in May 1992. A vote was taken by the
Standing Committee at its June 1992 meeting here in Washington. By a vote of nine
to one, the Standing Committee approved the draft rules with revisions. The rules
were submitted to the Judicial Conference in September and, with some additional
revisions, then to the Supreme Court.

The proposed rules amendments now before you have gone through an impressive
gauntlet of scrutiny. At each stage the rules amendments received fresh and thor-
ough review, as evidenced by the changes made at each level of review. This work
product addresses recognized procedural problems and represents the culmination
of many years work of many judges, private practitioners, and academics.

Mr. Chairman, before closing, I ask leave to do three things briefly. One is to ex-
press a concern that is very much on my mind, and I am aware that it is also a
concern you have felt. In a sense, then, I am speaking to the choir, but the message



12

is one of such importance in my view that I hope you will understand my irresistible
impulse to express it.

I am concerned that bills continue to be introduced in Congress to amend federal
rules directly by statute, bypassing the Rules Enabling Act process. The Rules Com-
mittees and the Administrative Office hope we can help you persuade Members of
Congress (and any persons or groups who press Congress to enact rules by statute)
that the Rules Enabling Act process is sound and fair, and should be used. Accelera-
tion of the process, in particular instances, may be both feasible and appropriate.
We believe, however, that the basic procedures for notice, comment and meticulous
care in drafting are especially appropriate for rules of procedure in the courts, and
that the benefit? of adhering to the process outweigh interests that might be served
by quicker action that bypasses these safeguards.

The second thing I want to emphasize is that I urge you to approve all of the rules
the Supreme Court has sent to you in the current package, including the most con-
troversial of the Civil Rules.

Third, I would ask you to reject the criticism of the rulemaking process that there
was no opportunity for public comment after the Advisory Committee developed its
final draft on the civil rules. This argument, followed to its logical end, would result
in a static body of Federal Rules. The critics would have liked another opportunity
to comment on the new draft that emerged from the committee's deliberations on
the earlier comments.

If the process is delayed for republication each time any change is made, a serious
risk of deadlock arises. The rulemaking process would be effectively at a standstill
while the committee tried to accommodate every constituency and every possible
complaint about each new modification of the last published draft.

I submit that the better practice is the one followed in this instance. When the
revised draft is in its nature a proposed amendment falling somewhere between the
existing rule and the more substantial change proposed in the draft published for
comment, republication for another round of comment and reconsideration is neither
required nor appropriate.

As I noted earlier, both Congress and the Rules Committees are regularly sub-
jected to demands for more expedited action. I urge that we not adopt a practice,
either in this instance or more generally, of such repeated republication for com-
ment that the process is disabled from responding reasonably promptly after a need
for amendment is recognized and analyzed, and a neutral and promising solution
is fashioned.

Finally, I express again, personally and on behalf of the Standing Committee, ap-

greciation for your permitting me to be heard on these important matters of tne
ules Enabling Act process and the specific proposals before you now.

Mr. Hughes. Judge Pointer, welcome.

STATEMENT OF SAM C. POINTER, JR., CHIEF DISTRICT JUDGE,
U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ALABAMA, AND CHAIRMAN, ADVISORY COMMITTEE ON CIVIL
RULES, JUDICIAL CONFERENCE OF THE UNITED STATES

Judge Pointer. Grood morning, Mr. Chairman and members of
the committee.

I, too, urge that Congress allow to take effect on December 1 of
this year the various amendments that the Supreme Court has
adopted. I will not discuss 19 of those rules and 6 forms, which ap-
pear at this time to be noncontroversial, and will only address the
few that have generated major controversy.

Rule 11 was proposed and ultimately adopted only after a very
unusual procedure, because before any change to rule 11 was
adopted or put forward for comment, we actually called for public
comment, comment from the bench and bar as to whether rule 11
was working, in what ways it was not and was creating problems.

It was only after that initial period that we did decide and on
the basis of two very thorough studies by the Federal Judicial Cen-
ter that indeed the 1983 version of rule 11, while it was serving
the salutary intended purpose of calling on lawyers to stop and
think, nevertheless was producing some major problems that need-



13

ed correction. We attempted to identify what those problems were,
and then in the language that was put forward in a published ver-
sion, attempted to address and remedy those.

Now, those changes, and there were many, as published, pro-
voked much controversy from both sides, both those who said we
were not going far enough in changing the 1983 version, and those
who were saying we were going too far in those. So we found both
types of criticism.

We did make some changes in that process, and the changes that
were made ameliorated much of the opposition that was saying we
needed to even take further steps to change the amendments from
the 1983 version. But at the same time we may have provoked, as
you can see through the dissent by the Supreme Court, the opposi-
tion on the other side that we were weakening the rule.

We believe that the rule as adopted by the Supreme Court rep-
resents an equitable, fair balance between some competing inter-
ests that will continue the message of rule 11, while relieving
courts and litigants from unnecessary involvement in what might
be called frivolous rule 11 motions at times.

When one studies what developed from the five district courts
whose rule 11 practice was studied in depth by the Federal Judicial
Center, we discovered so many thousands of cases in which rule 11
motions were being presented and addressed to the court with rel-
atively small percentage of those found ultimately to have merit by
the court resulting in sanctions.

We think there is a good balance here and we urge that these
balances as we have struck them be allowed to go forward and into
effect. And I am sure there will be some questions during the ques-
tion period about some specifics, which I will be glad to respond to.

I move now to rules 26 through 37, and more particularly rule
26(a)(1), the disclosure requirement. I think it is important to un-
derstand that these various changes in rules 26 through 37 involve
several fundamental notions. One is that we believe that lawyers
must become more selective, more restrained, and more efficient in
conducting discovery, and they need the support of a judiciary and
the rules process to allow that to occur.

Second, the rules that are adopted should accommodate to and
enhance the various district courts' ability to comply with the man-
dates of the Civil Justice Reform Act. Left alone, there is the poten-
tial for conflicts between the local plans and the national rules,
which we think should be avoided through appropriate changes in
the rules.

This committee is aware, I am sure, that at one point in our
process we simply said, let's put in an authorization for disclosure
without any indication of a default or suggested proposal. We later
decided that that was not as good as what we ended up with, and
as has been originally published. Here again the committee may
have some questions about why we made that type of change.

It is helpful in understanding the disclosure requirements to
view this as if there had been interrogatories by a party seeking
this limited type of information; an objection by the other side; and
then a court ruling rejecting the objections and directing that the
interrogatories be answered.



14

What these rules do, the disclosure, is to say, assume that that
has already occurred, and now the parties are under this obligation
to provide this core information about the case, much less than
what generally is sought and obtained in the majority of cases
right now, but this core .of information. Some tailoring of other
rules was necessary in order to accommodate for this approach.

A key element that was put into the text of the rule after origi-
nal publication was to require that attorneys meet and confer be-
fore commencing formal discovery, indeed to facilitate the process
of this mandatory disclosure. That was put from simply a rec-
ommendation as to how this would be done into the black letter of
the rule itself. It mandates that this be done. And this discussion
of counsel of the issues in the case, how they meet the disclosure
obligations as well as plan for formal discovery, will then guide the
parties and the court in rule 16 scheduling orders, and indeed in
resolving what some have feared to be the major horrors lurking
within this system.

We believe that this proposal, which includes the option by par-
ticular districts to decide they don't want to have disclosure during
this period of experimentation mandated under the CJRA, or that
they want to modify the particulars as to what the scope of disclo-
sure would be, the timing and such matters, or the types of cases.

This we believe is essential in order to allow districts to go for-
ward with their obligations under the CJRA. As indicated, 23 of 41
districts that have already adopted CJRA plans include some form
of disclosure. We think they need to have that legitimatized, and
indeed other courts that are now planning that same thing received
the benefit of our best thinking while getting the option to say, "We
want to change it."

Just a couple of comments about rule 30. This, as the chairman
noted, only deals with the recording of depositions, not of trial tes-
timony, and much of the correspondence you are likely to get will
be misdirected and be concerned about what is going to be happen-
ing with the trial of cases. That is not what this is designed to do.

It simply allows attorneys to make the decision as to what type
of transcription and recording they would like for the depositions,
and to say that judges need not be involved with that, or indeed
the general details, the more specific details of that, unless there
is a problem that develops.

The rule puts into effect for the first time provisions to safeguard
the integrity of videotaped depositions, and indeed, for convenience
of courts, says how those videotaped depositions are to be handled
at trial when they are offered.

With those already in place in the rule by this change, then it
says that judges should not ordinarily have to get involved in that.
It is simply a matter then for counsel, taking into account ques-
tions such as accuracy, cost and utility to make decisions for
themselves.

This is not intended to be an anti-court-reporter provision. We
don't believe it will have that effect.

I urge the committee and Congress as a whole not to consider
and pursue legislation that would defer the effective date of any of
the changes.

Thank you, Mr. Chairman.



15

Mr. Hughes. Thank you, Judge.

[The prepared statement of Judge Pointer follows:]

Prepared Statement of Sam C. Pointer, Jr., Chief District Judge, U.S. Dis-
trict Court for the Northern District of Alabama, and Chairman, Advi-
sory Committee on Civil Rules, Judicl\l Conference of the United States

Mr. Chairman and Members of the Subcommittee:

I am Sam C. Pointer, Jr., Chief Judge for the Northern District of Alabama and
Chairman of the Judicial Conference's Advisory Committee on Civil Rules.

I appreciate this opportunity to review with you the amendments to the Federal
Rules of Civil Proceaure adopted by the Supreme Court on April 22, 1993, which
will become effective December 1, 1993. The Advisory Committee is well aware of
the views of judges, attorneys, court reporters, litigants, and members of the public
which were expressed while these amendments were being considered and which
are likely to be renewed before Congress.

In the interest of brevity, my prepared remarks describe only summarily the
amendments that appear to be witnout substantial controversy. I discuss at greater
length those amendments (Rule 11 and Rules 26-37) that have generated the most
discussion within the bench and bar. Finally, I address separately the issues that
have been raised regarding videotaping of depositions. Due to time constraints, I
will need to skip major portions of my prepared remarks. I encourage your questions
and comments, as they will help me focus on the particular topics of greatest inter-
est to you.

Extensive Committee Notes are found in House Document 103-74 at pp. 132-325
following each amendment, and will not be repeated here. These Notes provide a
detailed explanation of the changes, and were revised to take account of the changes
made by the Standing Committee on Rules of Practice and Procedure or by the Judi-
cial Conference of the United States.

References in these remarks are to the pages of House Document 103-74. The
Subcommittee should be aware, however, that, unlike the Committee Notes, my
cover letter of May 1992 (at pp. 116-31) does not reflect changes later made by the
Standing Committee or technical amendments previously submitted to the Standing
Committee,! a^jj jj^g Standing Committee's Report (at pp. 112-15) does not reflect
changes later made by the Judicial Conference.^

I. non-controversial changes

Many of the amendments appear to be without substantial controversy, including
amendments to 18 rules, 1 new rule, amendments to 4 forms, 2 new forms, and the
abrogation of 1 old form. Given the time constraints, I may skip my prepared com-
ments on them, but will be pleased to discuss any of them in detail (or by supple-
mental written report) if desired by the Subcommittee.

Rule 1: This amendment, essentially hortatory, stresses that attorneys share with
the court the responsibility to see that the civil litigation is resolved not only fairly,
but also without undue costs or delay. This is consistent with the aims of the Civil
Justice Reform Act of 1990.

Rules 4, 4.1, 12, 15, 71A; Forms lA and IB: The most obvious change made by
these amendments is the reorganization of the provisions of Rule 4 for greater clar-
ity, placing some of the provisions into new rule 4.1. The provisions permitting mail-
ing of an "acknowledgment of service" under former Rule 4(c)(2)(C)(ii) have, for
greater accuracy, been recast under Rule 4(d) as ones permitting the sending of a
request for waiver" of formal service of process. Rule 4 nas been made more forgiv-
ing of errors in attempting service, either when suing the United States or when
there are delays in effecting service. To conform to these changes. Rules 12, 15, and
71A have been slightly modified, and new Forms LA and IB approved (replacing old
Form 18).



'^Particular note should be made of the changes by the Standing Committee in proposed Rule
11, providing that sanctions for Rule 11 violations will be discretionary rather than mandatory,
and clarifying that Rule II will not be violated merely by the passive failure to withdraw a pre-
viously filed paper. The Standing Committee also returned proposed changes in Rules 83 and
84 to the Advisory Committee for further "study in the light of similar changes being considered
by other Advisory Committees. Please note also that the cover letter had addressed proposed
changes in the Federal Rules of Evidence, one of which (Rule 702) was recommitted to the newly
formed Advisory Committee on the Rules of Evidence.

*The Judicial Conference rejected the proposal to amend Rule 56 and accepted, on a post-
meeting recommendation from the Standing Committee, a proposal to eliminate the potential
for cost-shifting under Rule 4 in cases with foreign litigants.



16

As highlighted in the Committee Note, I specifically call Congress' attention to the
provisions of new Rule 4(kX2), which will permit federal court process to be served
in a limited number of cases where previously, due to a gap in the rules, service
was not possible. This change corrects the deficiency noted by the Supreme Court
in Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 111 (1987).

Rule 5: This change will permit — if authorized both by the particular district court
and by the Judicial Conference — documents to be transmitted for filing by both fac-
simile and other electronic means.

Rule 16: These changes will enhance a district court's ability to meet its respon-
sibilities under the Civil Justice Reform Act of 1990 in eliminating unnecessary
costs and delays. I view the amendments as largely non -controversial. In fairness,
however, I should note that, since a few of the modifications complement changes
in Rule 26, some critics of Rule 26 have likewise opposed the amendments in Rule
16. Even if legislation were to be enacted suspending the effective date of the initial
mandatory disclosure requirements of Rule 26(aXl), the changes in Rule 16 need
not be postponed (if, that is, districts were still permitted to adopted disclosure re-
quirements as part of their local CJRA plans).

Rule 38: This technical amendment eliminates an arguable inconsistency between
Rule 38(b) and (d), and provides that a demand for jury trial must be both served
and filed within the time specified in the rule.

Rules 50, 52: These are technical changes to eliminate ambiguities in the rules
that became efTective December 1, 1991. The amendments make clear that judgment
as a matter of law is a procedure available both to plaintiffs and to defendants.

Rules 53, 72, 73, 74, 75, and 76; Forms 33, 34, and 34A: These are technical
amendments to conform to statutory changes under the Judicial Improvements Act
of 1990, which changed the title of "Magistrates" to "Magistrate Judges" and modi-
fied the provisions for parties to consent to trials by a Magistrate Judge.

Rules 54, 58: New Rule 54(dX2) establishes a uniform procedure for presenting
requests for attorneys' fees under statutes calling for awards to prevailing parties.
It should displace the myriad of local rules adopted following White v. New Hamp-
shire Dep't of Employment Sec, 455 U.S. 445 (1982). Amended Rule 58 provides an
optional procedure tnat, when appropriate, can avoid the necessity of dual, separate
appeals relating to the merits of a case and the award of attorney's fees.

Form 2: This is a technical revision to make the form consistent with statutoTy
changes in 28 U.S.C. 1331 and 1332 affecting jurisdiction of federal district courts.

II. SANCTIONS AND RULE 11

The extent to which I will orally present my prepared remarks regarding the
amendment to Rule 11 will depend upon the time allotted and the nature of ex-
pected presentations by others before tne Subcommittee. Although the proposals to
amend Rule 11 generated substantial controversy, many of the objections were obvi-
ated by changes to the published draft made by the Advisory Committee or the
Standing Committee.

Procedural History

The Advisory Committee approached the possible modification of Rule 11 with
special care, since major changes had been made in 1983 and many of the criticisms
appeared to be ones resolved during a period when both litigants and courts were
learning its implications and limitations. Although criticism of the 1983 rule was
widespread, repeated, and intense, we were reluctant to rely on anecdotal comments
and were mindful that aberrant decisions, often corrected on appeal, might mask
major benefits to the judicial system fostered by its "stop-and-think" mandate to liti-
gants.

The Committee's first steps were unusual ones in the rule-making process. One
step was to call for comments, particularly from lawyers and litigants, addressing
a series of questions before any change was proposed. We also requested that the
Federal Judicial Center undertake two extensive studies, one involving the use and
resolution of Rule 1 1 motions in five district courts and another involving a survey
of attitudes by federal district judges.

After reviewing these comments and studies, and after hearing orally from some
of the major protagonists in the debate, the Committee concluded that, indeed, there
were good reasons to consider some changes in Rule 11 and prepared a draft that
attempted to address and remedy the problem areas that seemed most legitimate
and significant. The Standing Committee authorized publication and a period for
comment.

A summary of the major areas of controversy that emerged from the written com-
ments and from those presented orally during two separate hearings is outlined at



17

pp. 120-22 of House Document 103-74. As indicated in that summary, the Advisory
Committee made a few changes from the published draft and submitted the pro-

?osed change to the Standing Committee. As noted on p. 114 of House Document
03-74, the Standing Committee made two changes in the proposed amendment of
Rule 11: first, that imposition of sanctions for a violation of the rule should be dis-
cretionary, not mandatory; second, that the language should clearly indicate that a
mere passive failure to withdraw a document would not constitute a Rule 11 viola-
tion.

Rule 11, as so amended by the Standing Committee, was approved by the Judicial
Conference of the United States and then adopted by the Supreme Court, with two
justices (Scalia and Thomas) dissenting.

Issues

Given the numerous modifications contained in the new rule, I am unsure what
concerns may be expressed to Congress regarding Rule 11. I urge the Subcommittee
to read the Committee Note accompanying Rule 11 (pp. 180-89), which explains in
detail its various provisions.

I assume there will be some who, like Justices Scalia and Thomas, will contend
that, although some of the changes may be worthwhile, the amendments may
render Rule 11 "toothless" and thereby eliminate "a significant and necessary deter-
rent to frivolous litigation." Their dissent (pp. 104-07 of House Document 103-74)
focuses on three of tne changes: the "safe harbor;" making imposition of sanctions
discretionary, rather than mandatory; and disfavoring compensation for litigation
expenses as a sanction.