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

** Committee Notes, November 1992 Amendments , supra note 1, at 94, citing Brazil,
The Adversary Character of Civil Discovery: A Critique and Proposal For Change . 31
Vand. L. Rev. 1348 (1978); Schwarzer, The Federal Rules. The Adversary Process, and
Discovery Reform. 50 U. Pitt. L. Rev. 703 (1989); see Schwarzer, Slaying The Monsters
of Discovery Cost and Delav: Would Disclosure Be More Effective Than Discovery? . 74
Judicature 178 (1991).



285



supponed the original disclosure theories do not provide even slight theoretical support lor
the proposed disclosure amendment. Conspicuously absent from the public comments on
the proposed disclosure process is support for the disclosure concept from practicing lawyers
and their clients - those who bear the costs and burdens of the present discovery system.
The fact that disclosure as a concept failed to produce any significant support, much less
advocates, from among the practicing bar signals a need for reexamination of the basic
disclosure concept.

As a threshold matter, the disclosure standard is unacceptably vague. It fails
to describe a party's disclosure obligation with sufficient clarity and specificity to allow a
party to make disclosure with any certainty of compliance. Second, disclosure will cause
unnecessary, burdensome costs and delays, primarily by precipitating satellite litigation.
Finally, disclosure conflicts with the ethical obligations of lawyers to their clients under the
adversary system, adversely affecting the attorney-client relationship and the work product
doctrine.

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

The standard for disclosure contained in the pending amendment requires each

party, in advance of a formal request, to identify' to an opponent all witnesses and to

describe "by category" documents "relevant" to "disputed facts alleged with particularity in

the pleadings."^' None of these three key terms can be defined objectively, in advance, by

a party intent on making a meaningful disclosure that complies with the terms of the Rule.



^^ See Proposed Rule 26. November 1992 Amendments, supra note 1, at 72-73.



286



The term "category" can range from the very broad (e.g., "engineering
drawings") to the very specific (e.g., engineering layout drawings showing the location of one
part of a product manufactured in a specific year). "Relevancy" is a commonly litigated
concept; it currently breeds more satellite litigation in discovery than any other - a harbinger
that it will lead to just as much contentiousness in pre-discovery disclosure." Disputes over
which allegations are pled with sufficient "particularity" to trigger disclosure also are certain
to arise. "Particularity" - a broad concept at best - is not a self-defining term, as the
substantial body of case law on pleading fraud with "particularity" under Rule y(b)
demonstrates."

B. The Proposal Will Encourage Unnecessary Satellite Litigation.

Because of the uncertainty surrounding the scope of the disclosure obligation,
and concerns regarding privilege and the lawyer's ethical obligations, conscientious parties
are likely to move for protective orders or to turn to other motion practice to define their
disclosure obligations with greater certainty. As a result, satellite litigation is certain to
increase, even before disclosures are made.

More motion practice will increase the burdens on already overworked courts
and court personnel, primarily at the trial court level, but also at the appellate level as the
ambiguities and vagaries of the disclosure concept are resolved. In light of the strain the
existing caseload already places on federal judges and courts, rules amendments should be



" Ct R.W. Int'l Corp. v. Welch Foods. Inc.. 937 F.2d 11 (1st Cir. 1991) (plaintiff
viewed discovery related to subsidiary as not relevant; trial court disagreed, awarding
sanctions; appellate court reversed; disputes over relevancy most common in discovery).

" See, e^, Ross v. Bolton . 904 F.2d 819 (2d Cir. 1990).



287



made only when they will reduce the woridoad, and not when they will increase it as
disclosure a^ost certainly will.

/ Sanctions litigation under Rule 37(b) also is likely to increase against parties
who have attempted in good faith, but perhaps unsuccessfully, to meet their vaguely defined
disclosure obligations. The sanctions now available under Rule 37, as revised by the
Committee, are severe because the proposed Rule 37(b) amendment equates inadequate
disclosure with failure to comply with a court order under the present discovery rules.
Either violation can trigger the ultimate sanction - default judgment. Yet, failure to comply
adequately with an ambiguous, voluntary disclosure obligation would not and should not rise
to the level of deliberate violation of a court order. Thus, it is difficult to discern a
substantial relationship between the error of failing to disclose, and the sanction tor that
error as currently drafted in proposed Rule 26.

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

The proposed disclosure process more closely resembles procedures followed

in the inquisitorial civil justice systems used in Western Europe and Japan than American

jurisprudence." Voluntary disclosure of information harmful to one's own case, without

even a request for that information, is antithetical to any adversary system such as ours,

which is premised on the belief that each side presents its best, not worst, case and the truth



^ See Cortese & Blaner. Civil Justice Reform in America: A Question of Parity With
Our International Rivals . 13 Univ. Pa. J. Int'l Bus. L. 1 (1992) (comparmg civil justice
systems in Germany, England and Japan vyith American civil justice system); see ajso
Committee Notes. November 1992 .Amendments, supra note 1, at 95 (United Kingdom
and Canada require disclosure).



288



emerges from the clash of conflicting positions.''* If adversity does not exist during the
pretrial process, it substantially weakens the underpinnings for having adversity at trial - a
complex issue that the Committee did not, and indeed, could not fully consider.

The disclosure requirement also will create mischief in the attorney-client
relationship. Clients do not, and should not, expect their own lawyers to search client files
for self-destructive information only to dutifully turn it over to the adversar\'. By creating
a disclosure obligation that runs from the attorney to the opponent, the proposed
amendment creates an unavoidable conflict with the attorney's obligation to the client.
Although the proposed disclosure process does not modify the attorney-client privilege
directly, it will undermine essential aspects of the relationship that the privilege was created
to protect.

Moreover, the proposed disclosure process is inconsistent with the policies
underlying the work product doctrine. The very process of deciding what is "relevant" to
disputed facts in the pleadings necessarily incorporates counsel's judgments and mental
impressions based on investigations, strategies, and decisions regarding theories of the case.
Requiring counsel to make disclosure requires counsel to disclose work product. Disclosure
unavoidably may cause a party to reveal to an opponent a line of factual inquiry or legal
reasoning that the opponent never would have considered or litigated on its own.
Consequently, disclosure will expand the scope of each matter litigated instead of limiting
it to the minimum. The work product doctrine was intended to protect and promote
inventiveness, diligence, and excellence among attorneys. The disclosure process, which



" CL Brazil, supra note 30 at 1345 (discovery reform, such as disclosure, unlikely to be
effective unless adversary nature of justice system is changed, including attorney's ethical
obligations).



289



would force an attorney to reveal his thought processes early on in litigation, is antithetical

to these goals.

The adversary nature of civil litigation in this country pervades all aspects of
the civil justice system. Importation of a starkly non-adversarial procedure, such as
disclosure, into this process will have far-reaching, largely unforeseen implications for the
civil justice system as a whole - implications that the Committee has not fully considered.



36



rV. Conclusion

If Rule 26(a)(1) moves forv,ard at this time, it wiii weaken the iniegriiv ot thd
rules amendment process.^^ The unprecedented opposition to and lack of support tor the
proposed Rule 26(a)(1) disclosure amendment, the lack of a meaningful opportunity for
public comment on the final proposal, and the numerous, significant flaws in the proposal
all coalesce to provide compelling justification for returning Rule 26(a)(1) to the Committee



^ See also Mullenix, supra note 22, at 820-21 (proposed disclosure rule "presents
unresolved research issues as well as several lurking problems.") Brazil, supra note 30 at
1345.

3^ See A Legend Worries , supra note 13.



290



on Rules. We respectfully ask the Court to exercise its authority over the rules amendment

process, to decline to approve proposed Rule 26(a)(1), and to remand the Rule to the

Committee on Rules for additional public comment and reconsideration in light of

experience with the CJRA experimental disclosure plans.

Respectfully submitted,

American Legislative Exchange Council
Association of Defense Trial attorneys
Business roundtable Lawyers Committee
Chamber of Commerce of the United States
Federation of Insurance and Corporate Counsel
International Assocl\tion of Defense Counsel
Lawyers for Civil Justice

Litigation Section of the District of Columbia Bar*
Public Citizen Litigation Group



The views expressed herein represent only those of ihe Litigation Section of the District of Columbia
Bar and not those of the D.C. Bar or of its Board of Governors.



291
APPENDIX A

RULES OF CIVIL PROCSOURE

519 of the cat*, the discovery already had in

520 the case, the amount in controversy, and

521 the importance of the issues at stake in

522 the litigation.

523 Zf a request, response, or objection is not

524 signed, it shall be stricken unless it is

525 signed promptly after the omission is called

526 to the attention of the party making the
52*7 request, response, or objection, and a party

528 shall not be obligated to take any action with

529 respect to it until it is signed.

533 ill If without su bBtiantlal ^uBtif icatien

531 a certification is made in violation of the

532 rule, the court, upon motion or upon its own

533 initiative, shall impose upon the person who

534 made the certification, the party on whose

535 behalf the di»eloKure. request, response, or

536 objection is made, or both, an appropriate

537 sanction, which may include an order to pay

538 the amount of the reasonable expenses incurred

539 because of the violation, including a

540 reasonable attorney's f*e.

COMMITTEE MOTES

SubdiviBien tm\. 'Through the addition of

paragraphs (l)-'<4), this subdivision imposes on*
parties a duty to disclose, without awaiting formal



292



RULES OF CIVIL PROCEDURE



ditcovsry requests, certain basic information that is
needed in most cases to prepare for trial or siake an
informed decision about settleaent. The rule requires
all parties (1) early in the case to exchange
information regarding potential witnesses, documentary
evidence, damages, and insurance, (2) at an
appropriate time during the discovery period to
identify expert witnesses and provide a detailed
%rritten statement of the testimony that may be offered
at trial through specially retained experts, and (3)
as the trial date approaches to identify the
particular evidence that may be offered at trial. The
enumeration in Rule 26(a) of items to be disclosed
does not prevent a court from requiring by order or
local rule that the parties disclose additional
information without a discovery request. Nor are
parties precluded from using traditional discovery
methods to obtain further information regarding these
matters, as for example asking an expert during a
deposition about testimony given in other litigation
beyond the four-year period specified in Rule
26(a)(2)(B).

A major purpose of the revision is to accelerate
the exchange of basic information about the case and
to eliminate the paper work involved in. requesting
such information, and the rule should be applied in a
manner to achieve those objectives. The concepts of
imposing a duty of disclosure were set forth in
Brazil, The Adversary Character of Civil Discovcrvt A
Critique and Proposals for Chance. 31 Vand. L. Rev.
1348 (1978), and Schwarzer, The Federal Rules, the
Adversary Process, and Discovery Reform. SO Vt Pitt-
L. Rev. 703. 721-23 (1989).

The rule is based upon the experience of district
courts that have required disclosure of some of this
information through local rules, court-approved
standard interrogatories, and standing orders. Most
have required pretrial disclosure of the kind of
information described in Rule 26(a)(3). Many have
required written reports from experts containing
information like that specified in Rule 26(a)(2)(B).
While far more limited, the experience of the few
state and federal courts that have required pre-
discovery exchange of core information such as is
contemplated in Rule 26(a)(1) indicates that savings
in time and expense can be achieved, particularly if
the litigants meet and discuss the issues in the case
as a predicate for this exchange and if a judge



293

RULES OF CIVIL PROCEDURE

supports the process, ss by using ths results to guide
further proceedings in the case. Courts in Canada and
the United Kingdom have for many years required
disclosure of certain information without awaiting a
request from an adversary.

Paragraph flK As the functional equivalent of
court-ordered interrogatories, this paragraph requires
early disclosure, without need for any request, of
four types of information that have been customarily
secured early in litigation through formal discovery.
The introductory clause permits the court, by local
rule, to exempt all or particular types of cases from
these disclosure requirement or to modify the nature
of the information to be disclosed. It is expected
that courts would, for example, exempt cases like
Social Security reviews and government collection
cases in which discovery would not be appropriate or
would be unlikely. By order the court may eliminate
or modify the disclosure requirements in a particular
case, and similarly the parties, unless precluded by
order or local rule, can stipulate to elimination or
modification of the requirements for that case. The
disclosure obligations specified in paragraph (1) will
not be appropriate for all cases, and it is expected
that changes in these obligations will be made by the
court or parties when the circumstances warrant.

Authorization of these local variations is, in
large measure, included in order to accommodate the
Civil Justice Reform Act of 1990, which implicitly
directs districts to experiment during the study
period with differing procedures to reduce the time
and expense of civil litigation. The civil justice
delay and expense reduction plans adopted by the
courts under the Act differ as to the type, form, and
timing of disclosures required. Section 105(c)(1) of
the Act calls for a report by the Judicial Conference
to Congress by December 31, 1995, comparing experience
in twenty of these courts; and section 105(c)(2)(B)
contemplates that some changes in the Rules may then
be needed. While these studies may indicate the
desirability of further changes in Rule 26(a) (1)«
these changes probably could not become effective
before December 1998 at the earliest. In the
meantime, the present revision puts in place e series
of disclosure obligations that, unless a court acts
affirmatively to impose other requirements or indeed
to reject all such requirements for the present, are,
designed to eliminate certain discovery, help focus*



294

RULES or CIVIL PROCEDURE



supports the process, ss by using the results to guide
further proceedings in the esse. Courts in Cansds end
the United Kingdom have for many years required
disclosure of certain information without awaiting a
request from an adversary.

Paragra ph fll. As the functional equivalent of
court-ordered interrogatories, this paragraph requires
early disclosure, without need for any request, of
four types of information that have been customarily
secured early in litigation through formal discovery.
The introductory clause permits the court, by local
rule, to exempt all or particular types of cases from
these disclosure requirement or to modify the nature
of the information to be disclosed. It is expected
that courts would, for example, exempt eases like
Social Security reviews and government collection
cases in which discovery would not be appropriate or
would be unlikely. By order the court may eliminate
or modify the disclosure requirements in a particular
case, and similarly the parties, unless precluded by
order or local rule, can stipulate to elimination or
modification of the requirements for that case. The
disclosure obligations specified in paragraph (1) will
not be appropriate for all cases, and it is expected
that changes in these obligations will be made by the
court or parties when the circumstances warrant.

Authorization of these local variations is, in
large measure, included in order to accommodate the
Civil Justice Reform Act of 1990, which implicitly
directs districts to experiment during the study
period with differing procedures to reduce the time
and expense of civil litigation. The civil justice
delay and expense reduction plans adopted by the
courts under the Act differ as to the type, form, and
timing of disclosures required. Section 105(c)(1) of
the Act calls for a report by the Judicial Conference
to Congress by December 31, 1995, comparing experience
in twenty of these courts; and section 105(c)(2)(B)
contemplates that some changes in the Rules nay then
be needed. While these studies siay indicate the
desirability of further changes in Rule 26(a)(1),
these changes probably could not become effective
before December 1998 at the earliest. Zn the
meantime, the present revision puts in place a series
of disclosure obligations that, unless a court acts
affirmatively to impose other requirements or indeed
to reject all such req\:irements for the present, are,
designed to eliminate certain discovery, help focus*



295



RULES or CIVIL PROCEDURE



documents dsaired by proceeding under Rule 34 or
through informml requests. The disclosing party does
not, by describing documents under subparagraph {B) ,
wsive its right to object to production on the basis
of privilege or \toTk product protection, or to assert
that the documents are not sufficiently relevant to
justify the burden or expense of production.

The initial disclosure requirements of
subparagraphs (A) and (B) are United to
identification of potential evidence "relevant to
disputed facts alleged with particularity in the
pleadings." There is no need for a party to identify
potential evidence with respect to allegations that
are admitted. Broad, vague, and conclusory
allegations sometimes tolerated in notice pleading—
for example, the assertion that a product with many
component parts is defective in some unspecified
manner - should not impose upon responding parties the
obligation at that point to search for and identify
all persons possibly involved in, or all documents
affecting, the design, manufacture, and assembly of
the product. The greater the specificity and clarity
of the allegations in the pleadings, the more complete
ehould be the listing of potential witnesses and types
of documentary evidence. Although paragraphs (1)(A)
and (1)(B) by their terms refer to the factual
disputes defined in the pleadings, the rule
contemplates that these issues would be informally
refined and clarified during the meeting of the
parties under subdivision (f ) and that the disclosure
obligations would be adjusted in the light of these
discussions. The disclosure requirements should, in
short, be applied with common sense in light of the
principles of Rule 1, keeping in Bind the salutary
purposes that the rule is intended to accomplish. The
litigants should not indulge in gamesmanship with
respect to the disclosure obligations.

Subparagraph (C) imposes a burden of disclosure
that includes the functional equivalent of a standing
Request for Production under Rule 34. A party
claiming damages or other monetary relief must, in
addition to disclosing the calculation of such
damages, make available the supporting documents for
inspection and copying as if a request for such
materials had been made under Rule 34. This
obligation applies only with respect to documents then
reasonably available to it and not privileged or*
protected as work product. Likewise, a party would



296

RULES OF CIVIL PROCEDURE

not b« expected zo provide a calculation of daaagas
which, as in many pat ant infringamant actiona, dapanda
on information in tha poaaeaaion of anothar p&rty or
paraon.

Subparagraph (D) raplacaa aubdiviaion (b)(2) of
Rula 26, and providaa that liability inauranca
policiaa ba mada available for inapaction and copying.
Tha laat two aantancaa of that aubdiviaion hava baan
omittad aa unnacaaaary, not to aignify any changa of
law. Tha diacloaura of inauranca information doaa not
tharaby rander auch information admiaaibla in
avidanca. S»m Rula 411, Fadaral Rulaa of Evidanca.
Nor doaa aubparagraph (D) raquira diacloaura of
applicationa for inauranca, though in particular caaaa
auch information may t* diacovarabla in accordance
with raviaed aubdiviaion (a)(S).

.Unlaas tha court diracta a diffarant tima, tha
diacloauras raquirad by aubdiviaion (a)(1) ara to bm
mada at or within 10 daya after tha meeting of the
partiea under aubdiviaion (f). One of the purpoaea of
thia meeting ia to refine the factual diaputaa with
raapact to which diacloauraa ahould ba mada under
paragrapha (1)(A) and (1)(B), particularly if an
anawer haa not been filed by a defendant, pr, indeed,
to afford the parties an opportunity to modify by
atipulation the timing or acope of thaaa obligationa.
The time of thia meeting ia generally left to tha
partiea provided it ia held at laaat 14 daya before a
acheduling conference ia held or before a acheduling
order ia due under Rule 16(b). In caaaa in which no
acheduling conference ia held, thia will mean that the
meeting muat ordinarily be held within 75 daya after
a defendant haa first appeared in the caaa and hence
that the initial diaclosures would ba due no later
than 85 daya after the first appearance of a
defendant.

Before ma)cing ita diacloauraa, a party has tha
obligation under aubdiviaion (g)(1) to Balca a
reaaonable inquiry into the facts of tha case. Tha
rule doaa not demand an exhaustive invaatigation at
thia atage of tha caaa, but one that ia reasonable
under the circumatancea, focusing on tha facta that
are alleged with particularity in the plaadinga. The
type of inveatigation that can ba axpacted at thia
point will vary baaed upon auch factora aa tha number
and complexity of the iasuaai tha location, nature,
number, and availability of potentially relevant



297

RULES OF CIVIL PROCEDURE



witnesses and documents; the extent of pest «rorking
relstionships between the attorney and the client,
particularly in handling related or similar
litigation; and of course how long the party has to
conduct an investigation, either before or after
filing of the case. As provided in the last sentence
of subdivision (a)(1), a party is not excused from the
duty of disclosure merely because its investigation is
incomplete. The party should ma)ce its initial
disclosures based on the pleadings and the information
then reasonably available to it. As its investigation
continues and as the issues in the pleadings are
clarified, it should supplement its disclosures as
required by subdivision (e)(1). A party is not
relieved from its obligation of disclosure merely
because another party has not made its disclosures or
has made an inadequate disclosure.

It will often be desirable, particularly if the
claims made in the complaint are broadly stated, for
the parties to have their Rule 26(f) meeting early in
the case, perhaps before a defendant has answered the