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

complaint or had time to conduct other than a cursory
investigation. In such circumstances, in order to
-facilitate more meaningful and useful initial
disclosures, they can and should stipulate to a period
of more than 10 days after the meeting in which to
make these disclosures, at least for defendants who
had no advance notice of the potential litigation. A
stipulation at an early meeting affording such a
defendant at least 60 days after receiving the
complaint in which to make its disclosures under
subdivision (a)(1) — a period that is two weeks longer
than the time formerly specified for responding to
interrogatories served with a complaint— should be
adequate and appropriate in most cases.

Paragraph (2) . This paragraph imposes an
additional duty to disclose information regarding
expert testimony sufficiently in advance of trial that
opposing parties have a reasonable opportunity to
prepare for effective cross examination and perhaps
arrange for expert testimony from other witnesses.
Normally the court should prescribe a tixne for these
disclosures in a scheduling order under Rule 16(b),
and in most cases the party with the burden of proof
on an issue should disclose its expert testimony on
that issue before other parties are required to make
their disclosures with respect to that issue. In thr
absence of such a direction, the disclosures are to be



298



RULES OF CIVIL PROCEDURE



made by all parties at laast 90 days bafora the trial
date or the date by which the case is to be ready for
trial, except that an additional 30 days is allowed
(unless the court specifies another tine) for
disclosure of expert testimony to be used solely to
contradict or rebut the testinony that may be
presented by another party's expert. For a discussion
of procedures that have been used to enhance the
reliability of expert testimony, see H. Craham, expert
Witness Testimony and the Federal Rules of Evidence?
Insuring Adcouste Assurance of Tru^tworrhiness . 1986
V. III. Li PgVr 90.

Paragraph (2)(B) requires that persons retained or
specially employed to provide expert testimony, or
whose duties as an employee of the party regularly
involve the giving of expert testimony, must prepare
a detailed and complete written report, stating the
testimony the witness is expected to present during
direct examination, together with the reasons
therefor. The information disclosed under the former
rule in answering interrogatories about the
"substance" of expert testimony was frequently so
sketchy and vague that it rarely dispensed with the
need to depose the expert and often was even of little
help in preparing for a deposition of the witness.
Revised Rule 37(c)(1) provides an incentive for full
disclosure; namely, that a party will not ordinarily
be permitted to use on direct examination any expert
testimony not so disclosed. Rule 26(a) (^)(B) does not
preclude counsel from providing assistance to experts
in preparing the reports, and indeed, with experts
such as automobile mechanics, this assistance Biay be
needed. Nevertheless, the report, which is intended
to set forth the substance of the direct examination,
should be written in a manner that reflects the
testimony to be given by the witness and it must be
signed by the witness.

The report is to disclose the data and other
information considered by the expert and any exhibits
or charts that summarize or support the expert's
opinions. Given this obligation of disclosure,
litigants should no longer be able to argue that
materials furnished to their experts to be used in
forming their opinions— -whether or not ultimately
relied upon by the expert—are privileged or otherwise
protected from disclosure when such persons are
testifying or being deposed.



299



RULES OF CIVIL PROCEDURE



Revised subdivision (b)(4)(A) suthorixes the
deposition of expert witnesses. Since depositions of
experts required to prepare • written report may be
taken only after the report has been served, the
length of the deposition of such experts should be
reduced, and in many cases the report may eliminate
the need for a deposition. Revised subdivision (e)(1)
requires disclosure of any material changes made in
the opinions of an expert from whom a report is
required, whether the changes are in the written
report or in testimony given at a deposition.

For convenience, this rule and revised Rule 30
continue to use the term "expert" to refer to those
persons who will testify under Rule 702 of the Federal
Rules of Evidence with respect to scientific,
technical, and other specialized matters. The
requirement of a written report in paragraph (2)(B),
however, applies only to those experts who are
retained or specially employed to provide such
testimony in the case or whose duties as an employee
of a party regularly involve the giving of such
testimony. A treating physician, for example, can be
deposed or called to testify at trial without %ny
requirement for a written report. By local rule,
order, or written stipulation, the requirement of a
written report may be waived for particular experts or
imposed upon additional persons who will provide
opinions under Rule 702.

Paragraph (2) . This paragraph imposes an

additional duty to disclose, without any request,
information customarily needed in final preparation
for trial. These disclosures are to be made in
accordance with schedules adopted by the court under
Rule 16(b) or by special order. If no such schedule
is directed by the court, the disclosures are to be
made at least 30 days before commencement of the
trial. By its terms, rule 26(a)(3) does not require
disclosure of - evidence to be used solely for
impeachment purposes; however, disclosure of such
evidence'-as well as other items relating to conduct
of trial''*fflay be required by local rule or a pretrial
order.

Subparagraph (A) requires the parties to designate
the persons whose testimony they may present as
substantive evidence at trial, whether in person or by
deposition. Those who will probably be called as
witnesses should be listed separately from those who*



300



RULES OF CIVIL PROCEDURE



arc not likely to be called but who ere being lilted
in order to preserve the right to do so if needed
because of developments during trial. Revised Rule
37(c)(1) provides that only persons so listed nay be
used at trial to present substantive evidence. This
restriction does not apply unless the omission was
"without substantial justification" and hence would
not bar an unlisted witness if the need for such
testimony is based upon developments during trial that
could not reasonably have been anticipated->*Sjb9^' *
change of testimony.

Listing a witness does not obligate the party to
secure the attendance of the person at trial, but
should preclude the party from objecting if the person
is called to testify by another party who did not list
the person as a witness.

Subparagraph (B) requires the party to indicate
which of these potential witnesses will be presented
by deposition at trial. A party expecting to use at
trial a deposition not recorded by stenographic means
is required by revised Rule 32 to provide the court
with a transcript of the pertinent portions of such
depositions. This rule requires that copies of the
transcript of a nonstenographic deposition be provided
to other parties in advance of trial for verification,
an obvious concern since counsel often utilize their
own personnel to prepare transcripts from audio or
video tapes. By order or local rule, the court may
require that parties designate the particular portions
of stenographic depositions to be used at trial.

Subparagraph (C) requires disclosure of exhibits,
including summaries (whether to be offered in lieu of
other documentary evidence or to be used as an aid in
understanding such evidence), that may be of fared as
substantive evidence. The rule requires a separate
listing of each such exhibit, though it should permit
voluminous items of a similar or standardised
character to be described by meaningful categories.
For example, unless the court has otherwise directed,
a series of vouchers might be shown collectively as a
•ingle exhibit with their starting and ending dates.
As with witnesses, the exhibits that will probably be
offered are to be listed separately from those which
are unlilcely to be offered but which are listed in
order to preserve the right to do so if needed because
of developments during trial. Under revised Rule
37(c)(1) the court can permit use of unlisted



301



KUL£S OF CIVIL PROCEDUKE



documents th« n««d for which could not raasonAbly have
b«cn anticip«tsd in advance of trial.

Upon receipt of theae final pretrial disclosures r
other parties have 14 days (unless a different tine is
specified by the court) to disclose any objections
they wish to ^ preserve to the usability of the
deposition testinony or to the admissibility of the
documentary evidence (other than under Rules 402 and
403 of the Federal Rules of - Evidence ) . Similar
provisions have become commonplace either in pretrial
orders or by local rules, and significantly expedite
the presentation of evidence at trial, as well as
eliminate the need to have available witnesses to
provide "foundation" testimony for most items of
documentary evidence. . The listing of a potential
objection does not constitute the making of that
objection or* require the court to rule on the
objection; rather, it preserves the right of the party
to make the objection when and as appropriate during
trial. The court may, however, elect to treat the
listing as a motion "in limine" and rule upon the
objections in advance of trial to the extent
appropriate . - v-r; - -

'-The time specified in the rule for the final
pretrial disclosures is relatively close to the trial
date. The objective is to eliminate the time and
expense in making these disclosures of evidence and
objections in those cases that settle shortly before
trial, while affording a reasonable time for final
preparation for trial in those caaes that do not
aettle. Zn many cases, it will be desirable for the
court in a scheduling or pretrial order, to eet an
earlier time for disclosures of evidence and provide
more time for disclosing potential objections.

Paraoraoh (4>. This paragraph prescribes the form
of disclosures. A signed ««ritten statement is
required, reminding the parties and counsel of the
solemnity of the obligations iaposedy and the
signature on the initial or pretrial disclosure is a
certification under subdivision (g)(1) that it is
complete and correct as of- the time when atade.
Consistent with Rule 5(d), these disclosures are to be
filed with the court unless otherwise directed. It is
anticipated that many courts will direct that expert
reports required under paragraph (2)(B) not be filed,
until needed in connection with a notion or for trial.



302

RULES OF CIVZL PROCEDURE



ParaoraBh fSK This para9raph is raviscd to take
not* of ths svsilsbility of revised Rule 45 for
inspection from non-parties of documents end premises
without the need for e deposition.

Subdivisien fb>. This subdivision is revised in
several respects. First, former paragraph (I) is
subdivided into two paragraphs for ease of reference
and to avoid renumbering of paragraphs (3) and (4).
Textual changes are then atade in new paragraph (2) to
enable the court to keep tighter rein on the extent of
discovery. The information explosion of recent
decades has greatly increased both the potential cost
of wide-ranging discovery and the potential for
discovery to be used as an instrument for delay or
oppression. Amendments to Rules 30, 31, and 33 place
presumptive limits on the number of depositions and
interrogatories, subject to leave of court to pursue
additional discovery. The revisions in Rule 26(b)(2)
are intended to provide the court with broader
discretion to impose additional restrictions on the
scope and extent of discovery and to authorize courts
that develop case tracking systems based on the
complexity of cases to increase or decrease by local
rule the presumptive niamber of depositions and
interrogatories allowed in particular types or
classifications of cases. The revision also dispels
any doubt as to the power of the court to impose
limitations on the length of depositions under Rule 30
or on the number of requests for admission under Rule
36.

Second, former paragraph (2), relating to
insurance, has been relocated as part of the required
initial disclosures under subdivision (a)(1)(D), and
revised to provide for disclosure of the policy
itself.

Third, paragraph (4) (A) is revised to provide that
experts who are expected to be witnesses will be
subject to deposition prior to trial, conforming the
norm stated in the rule to the actual practice
followed in most courts, in which depositions of
experts have become standard. Concerns regarding the
expense of such depositions should be mitigated by the
fact that the expert's fees for the deposition will
ordinarily be borne by the party taking the
deposition. The requirement under subdivision
(a)(2)(B) of a complete and detailed report of the
expected testimony of certain forensic experts may.



303



APPENDIX B
SUMMARY OF COMMENTS ON RULE 26 DISCLOSURE

(comments received as of Januarv' 29. 1992)

A total of 101 comments were reviewed addressing the proposed amendment to Federal
Rule of Civil Procedure 26 that would require disclosure of information in advance of
discovery. Ninety-five percent of the comments were in opposition to the proposed
disclosure process. Eight federal district court judges commenied. and seven out of the eight
were opposed to disclosure. The following is a summar>' of the primary objections against
the proposal and a tally of the percentage of commenters who raised these objections.

Specific Objections Percent

Commenting

The standard for making disclosure, "likely to bear significantly" is too 58

vague.

A disclosure process will spawn more satellite litigation and disputes. 50

The disclosure process will be unworkable under the notice pleading 49

system.

The 30 day time limit for making disclosures after the answer is filed 43

is too short.

Empirical data on disclosure is needed from the Biden bill districts 37

before nationwide implementation.

Disclosure will result in much unnecessary and burdensome production 37

of documents and information.

The disclosure process is inconsistent with the attorney-client relation- 13

ship and will undermine the work product doctrine.

The disclosure process is inconsistent with the adversary system. 13

Simultaneous disclosure places an unfair burden on the defendant. 4



304



APPENDIX C



Forma] Comments In Opposition To Rule 26
Submitted by Bar Associations. Business Associations, and Government Agencies



Alliance of American Insurers

Alliance for Justice

American Bar Association
Section of Litigation
Section of Antitrust Law
Anthony R. Palermo, Secretary
Admiralty and Maritime Litigation
Committee

American Board of Trial Advocates

American Civil Liberties Union

American College of Trial Lawyers

American Corporate Counsel Association

American Institute of Certified Public
Accountants

American Insurance Association

Arkansas Association of Defense Counsel

Association of American Railroads

Association of Trial Lawyers

Business Roundtable

State Bar of California

Central District of California Lawyer

Representatives,

Ninth Circuit Judicial Conference

Chamber of Commerce of the United States

Chicago Council of Lawyers

Colorado Bar Association



Connecticut Bar Association

Federal Practice and Litigation
Sections

Defense Counsel of Delaware

Federal Bar Association, Los Angeles Chapter

State Bar of Georgia

Hawaii Defense Lawyers Association

Idaho Association of Defense Counsel

Illinois Assocition of Defense Trial Counsel

International Association of Defense Counsel

Iowa Defense Counsel Association

U.S. Department of Justice

Lawyers for Civil Justice

Los Angeles County Bar Association

Maritime Law Association of the United States

Michigan Defense Trial Counsel, Inc.
Mississippi Defense Lawyers Association

State Bar of Montana

NAACP, Legal Defense and Educational Fund

National Association of Independent Insurers

National Association of Railroad Trial Counsel

New Jersey Defense Association

New Jersey State Bar Association

New York State Bar Association Commercial
and Federal Litigation Section



305



Phannaceutical Manufacturers Association

Philadelphia Bar Association

Product Liability Advisory Council

Public Citizen Litigation Group

South Carolina Defense Trial Attoneys'
Association

Trial Lawyers for Public Justice

Virginia Association of Defense Attorneys

Washington Defense Trial Lawyers

Washington Trial Lawyers Association

Wichita (Kansas) Bar Association



Formal Comments In Opposition To Rule 26
Filed Bv Corporations



American Standard Inc.
Amoco Corporation
ARCO

Bausch & Lomb Inc.
Bethlehem Steel Corporation
Bridgestone/Firestone, Inc.
Caterpillar. Inc.
Chesapeake Corporation
The Clorox Company
The Coca-Cola Company
Control Data
Coming Inc.



Cooper Tire &. Rubber Company

Deere & Company

The Dow Chemical Company

Duquesne Light Company

E.I. DuPont de Nemours and Company

Eastman Kodak Company

Emerson Electric Co.

E-Systems, Inc.

Fina, Inc.

Ford Motor Company

Gates Energy Products

GenCorp



306



General Motors

Georgia-Pacific Corporation

Harley-Davidson. Inc.

Harris Corporation

Hershey Foods

Hughes Aircraft Company

Joy Technologies, Inc.

Lone Star Technologies

LTV Steel Company

Mazda Motor of America

McDennott, Inc.

McGraw-Hill, Inc.

Mead

Melroe Company

Michelin Tire Corporation

Mobil Corporation

Morgan Stanley & Co

Morton International

Murphy Oil USA Inc.

Nalco Chemical Company

Nissan North America, Inc.

Olin Corporation

Oryx

Otis Elevator (United Technologies)



Phelps Dodge Corporation

Piper Aircraft Corporation

The Procter & Gamble Company

Ralston Purina Company

Raytheon

Sears, Roebuck and Co.

The Sherwin-Williams Company

Snap-On Tools

Sundslrand Corporation

Tenneco Inc.

The Timken Company

TRW Inc.

Union Carbide Corporation

The Uniroyal Goodrich Company

USX

Walico Truck Equipment Co.

Washington Corporations
Zurn Industries, Inc.



307



Steven J. Cologne, Mclnnis. Fitzgerald, Rees.
Sharkev <k Mclntvre



Formal Comments Submitted bv Atlorne\s and .Indies
Robert J. Albair

Arthur R. Almquist, Mehaffcy & Webber
Dan H. Ball, Thompson & Mitchell
S. Paul Battaglia, Bed, Schoeneck & King



William C. Beatty. Huddleston, Bolen. Beatt>.
Porter & Copen

James S. Bianchi, Myers. Bianchi & McConnell

Sheila L. Birnbaum. Skadden. Arps, Slate.
Meagher & Flom

Peter K. Bleakley, Arnold &. Porter

T. Mack Brabham

Kim R.I. Brogan, Epsten &. Grinnell

Hon. Albert V. Bryan, Jr.. United States
District Court, Eastern District of Virginia

John C. Cahalan, Dunn. Carney, Allen,
Higgins & Tongue

Richard P. Campbell, Campbell & Associates

John M. Capron, Fisher & Phillips

James E. Carbine, Weinberg and Green

Gordon M. Carver III, Dunn, Kacal. Adams,
Pappas & Law

Walter Cheifetz, Cheifetz, Pierce, Cochran,
Kozak & Mathew

Douglas J. Chumbley, Popham Haik

F. Bosley Crowther 3rd, Crowther & Bresee

Mary Coffey, The John J. Frank Partnership



James J. Crov-ley. Thompson. Hine and Flory

Frank J. Daily. Quarles i; Brady

D. Michael Dale. Oregon Legal Services

Roy B. Dalton. Martinez & Dalton, P.A.

Michael J. Danner. Danner &. Bishop

Jeffrey S. Dd\idson. KirkJand & Ellis

Donald H. Dawson. Jr.. Plunkett &. Cooney

Douglas K. Dicierly. Barnes Si Thornburg

Paul R. Dexnn. Peabody & Arnold

Gregory J. Digel. Branch. Pike Ganz &
0"Callaghan

William L. Dorr. Harris Beach & Wilcox

Winslow Drummond. The McMath Law Firm,
P.A

Carroll E. Dubuc. Graham & James

Charles R. Dunn. Dunn. Kacal. Adams. Pappas
& Law

Kevin J. Dunne, Sedgwick, Detert, Moran &
Arnold

M. Richard Dunlap, Dickie, McCamey &
Chilcote

Dale Ellis, Knowles, King & Smith

John R. Fanone, Robert D. Kolar & Assoc.



308



Francis X. Ferrara. Carpenter. Bennett &
Morrissey

John P. Frank, Lewis and Roca

Charles F. Freiburger, Bricken & Eckler

Gail N. Friend, Fulbright & Jaworski

Keith Gerrard, Perkins Coie

Arthur M. Glover, Jr., Hisch, Glover.
Robinson & Sheiness

Catherine A. Gofrank, Gofrank and Kelman

Hugh Q. Gottschalk, Otten. Johnson.
Robinson, Neff & Ragonetti

Arthur P. Greenfield, Snell & Wilmer

Francis M. Gregory, Jr., Sutherland, Asbill &.
Brennan

Gregory A. Gross. Dickie. McCamey &
Chilcoie

Peter T. Grossi, Jr.. Arnold & Porter

William D. Grubbs, Woodward. Hobson &
Fulton

Harold A. Haddon, Debevoise & Plimpton

Patrick J. Hagan, Kincaid, Gianunzio, Caudle
&. Hubert

George N. Hayes, Delaney, Wiles, Hayes,
Reitman & Brubaker

Thomas M. Hayes, Jr., Hayes, Harkey, Smith,
Cascio & Mullens

Jon L. Heberling, McGarvey, Heberling,
Sullivan & McGarvey



Jonathan M. Hoffman. Martin. Bischoff.
Templeton. Langslet &. Hoffman

Hon. H. Russel Holland. United States District
Court, District of Alaska

Patrick E. Holiingsworth. Davidson. Home &
Hollingsworlh

Charles W. Hosack, t ukins & Annis

Allen W. Howell. Shinbaum. Thiemonge &.
Howell

Hunton & Williams

Chester A. Janiak. Burms & Levinson

Hon. James H. Jarvis II. United States District
Court, Eastern District of Tennessee

Lawrence R. Jensen. Hallgrimson. McNichols,
McCann & Inderbitzen

Frank G. Jones. Fulbright & Jaworski

Brian N. Johnson. Popham Haik Schnobrich &
Kaufman, Ltd.

Gregory P. Joseph. Fried. Frank, Harris,
Shriver & Jacobson

Bruce W. Kauffman. Dilworth. Paxson, Kalish
& Kauffman

M. J. Keefe

Loren Kieve, Debevoise & Plimpton

Harold E. Kohn, Kohn, Savett, Klein & Graf

Kenneth A. Kraus, Kraus & Kraus

Ernest Lane, III, Lane & Striebeck, P.A,

J.D. Ledbetter, Sommers, Schwartz, Silver &
Schwartz



309



Paul R. Leitner. Leitner. Warner. Moffitl,
Williams, Dooley, Carpenter & Napolitan

Edwin L Lovuher, Jr.. Wright. Lindsey &
Jennings

Jack B. McCowan. Jr.. Gordon & Rees

Andrew T. McKinney, IV, Phillips & Akers

Richard McMillan, Jr., Crowell & Moring

John O. Miller, White, Huseman, Pletcher &
Powers

Francis H. Morrison III. Day, Berry & Howard

Ronald G. Morrison, Morrison & Leveque

Hon. J. Frederick Motz, United States District
Court, District of Maryland

Arthur Nakazato. Kircher & Nakazato

Janet Napolitano, Lewis and Roca

Marc A. Nerenstone

Colvin G. Norwood, Jr., McGlinchey, Stafford,
Cellini & Lang

Henry J. Oechler, Jr., Chadbourne & Parke

Michael E. Oldham, Johnson, Oldham &.
Angell

Godfrey P. Padberg, Padberg, McSweeney,
Slater & Merz

Hon. Owen M. Panner, United States District
Court, District of Oregon

Deana S. Peck, Streich Lang

Thomas M. Peters, Vandeveer Garzia, P.C.

Richard Polley, Dickie, McCamey & Chilcote



Robert W. Powell. Dickinson. Uright. Moon.
Van Dusen Sk. Freeman

Clifford A. Rieders, Rieders. Travis. Mussina,
Humphrey &. Harris

Robert S. Rosemurg>', Butch. Quinn,
Rosemurgy. Jardis, Bush, Burkhart &. Strom

William A. Rossbach. Rossbach & Whston,
P.C.

Susan Vogel Saladoff

Hon. Barefoot Sanders. United States District
Court. Northern District of Texas

\V. Joseph Schleppi. McCuthcan. Druen.
Haynard. Rath i: Dietrich

Edward C. Schmidt. Jones. Day, Reavis &
Pogue

Karl E. Seib, Jr.. Patterson. Belknap. Webb &
Tyler

William D. Serritella, Ross &. Hardies

Roger S. Shafer

Samuel M. Shapiro

Joseph A Sherman, Sherman, Taff & Bangert

AJan C. Stephens, Thomsen and Stephens

John D. Stephenson, Jr., Jardine, Stephenson,
Blewett & Weaver, P.C.

J. Hamilton Stewart. III. Ogletree, Deakins,
Nash, Smoak & Stewart

Laura D. Stith, Shook, Hardy & Bacon

Paul L. Stritmatter, Stritmatter, Kessler &
McCauley

William H. Sutton, Friday, Eldredge & Clark



310



Michael E. Tigar. Debevoise &. Plimpton

Thomas F. Tobin, Baker & McKenzie

Jay H. Tressler, Tressler, Soderetrom. Maloney
& Priess

Windle Tudey, P.C.

H. Woodruff Turner, Kirkpatrick & Lockhart