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

individual cases, by stipulation, to avoid altogether
or to modify the disclosure system to suit their views
of the needs of their case.

3. Criticism; The proposed disclosure system is " radical . "
Responses;

(a) The reach of the duty to disclose (assuming that
duty is not obliterated entirely by stipulation) would
be far less than the reach of current discovery rules.
All the information covered by the amendments is
already fully discoverable under the existing rules; in
fact, under the rules already in force, a party who
refused to disclose the kind of information covered by
the initial disclosure obligation during the discovery
process would be sanctioned.

(b) The duty to disclose would reach only "the
information then reasonably available " to the party.
(Adv. Com. Notes) Because "the rule does not demand an
exhaustive investigation at this stage of the case,"
but is limited to information that is reasonably
available and that relates to disputed facts pled with
particularity, the specter of unfair imposition of
sanctions (monetary or preclusive) for shortfalls in
initial disclosures is a figment of someone's
excessively fertile imagination.

(c) Under the rules already in force , plaintiffs can
demand that defendants provide all this information 45
days after defendants are served with the complaint.
That is sooner than under the amendments . Defendants
can demand that plaintiffs provide this information 30
days after defendants are served. Obviously, that too
is sooner than under the amendments.



318



(d) The amendments would have no adverse impact on
litigants' abilities to fend off attacks under Rules
11. 12. or 56. The amendments would have no effect
whatsoever on the standards currently used to resolve
motions under any of these rules. Nor would the
amendments prematurely cut-off a party's access to
discovery it needed to fairly defend against any such
motions. For example, if the amendments take effect,
all parties will retain the full scope of the rights
they now enjoy under Rule 56(f) to conduct discovery in
order to oppose motions for summary judgment. Judges
will understand that it is not the purpose of the
disclosure system to set the stage for disposition of
cases by early motion. Since that is not the purpose
of the disclosures, and since no party is called upon
in its disclosures to produce all the information that
could be mustered in support of its position, judges
will be quick to detect and rebuff any efforts counsel
might make to tactically abuse the results of the
disclosure system through premature motions.

(e) The amendments would not shrink the scope of
attorney-client privilege or work-product protection
one iota . Every document and communication that is
currently protected by either of those doctrines would
remain so protected, and to the exact same extent.
These doctrines do not protect underlying facts and
percipient evidence; instead, they protect
communications between client and counsel, as well as
adversarial analyses and plans, all of which would
remain protected. And since the initial disclosures
would relate only to (1) facts that are (2) disputed
and (3) pled with particularity, it is hard to
understand how providing names of witnesses and
descriptions of categories of discoverable documents
could implicate any legitimate concerns about
privileges.

Why is it un-American or radical to ask counsel to
provide core information that is already clearly
discoverable and that is already routinely discovered
in fact? Why is it un-American or radical to ask
counsel to discuss their case and to try to fashion a
sensible discovery plan?

I note that the District Court for the District of
South Carolina, not an obviously "radical"
jurisdiction, has for several years imposed a duty of
early disclosure through court-mandated interrogatories
that in some respects is more demanding than the duty
that would be imposed by the amendments.



319



Criticism: The amendments are untimely (no action should
be taken until completion of experiments under
the CJRA) .

Responses:

(a) The experiments under the CJRA run through 1997.
Assessing their results will take some time. The
process of adopting amendments to the Federal Rules of
Civil Procedure takes, realistically, some three years.
Thus, Congress would be postponing action on the
serious problems in the civil discovery system for ten
years if Congress were to block implementation of these
amendments on the theory that it is premature to act
until the results of CJRA experimentation are fully
digested.

(b) As important, there is a very real risk that
blocking or "suspending" (a euphemism for the kiss of
death) implementation of these amendments would
discourage the kind of experimentation that is
necessary to fulfill the promise of the CJRA. A close
examination of the early implementation plans from many
district courts, and the recent history of vacillation
about how to respond to the CJRA mandates, expose a
serious possibility that many federal courts will not
experiment meaningfully with new approaches to reducing
cost and delay unless they are pro-actively led and
encouraged by Congress and the Judicial Conference.

(c) Much of the current experimentation with disclosure
is directly attributable to the fact that in 1991 the
Civil Rules Committee endorsed the idea of disclosure
and began formally moving it toward incorporation in
the Federal Rules. But when the Civil Rules Committee
was misperceived in early 1992 as retreating from its
endorsement of this idea, some courts began to retreat
from their tentative commitment to experiment
creatively with the disclosure concept and with other
substantial measures for attacking cost and delay.
Thus, one reason I voted to incorporate the disclosure
proposals in the current amendments was a real concern
that if we did not demonstrate leadership in this area
many district courts would do little significant
experimentation under the CJRA.

(d) The amendments as crafted by the Rules Committee
are intended to complement and reinforce the CJRA in
two important ways: first, by actively encouraging each
district court to conduct substantial experiments with
new ways to reduce cost and delay, and, second, by



320



providing all courts with a model approach to
disclosure and discovery management that is the refined
product of five years of thoughtful debate, reactions
to infonmed criticisms, and multiple reformulations of
proposals by a group of experienced judges and lawyers
whose sole objective is to improve the administration
of justice. The Advisory Committee devoted much more
time and research to this matter than could be expected
of any local group. The product of its labor, the
current disclosure/discovery management p-oposal, is a
sophisticated accommodation of many competing
considerations and criticisms. As such, it represents
one model that clearly is worthy of serious
consideration in the district courts. The proposed
amendments to the civil rules compel nothing more.
But if Congress blocks implementation of these
amendments, that serious consideration by district
courts may not be forthcoming. And if it isn't, the
purposes of the CJRA may be badly compromised.



Both because the criticisms of the amendments are
unpersuasive, and because blocking their implementation could do
serious harm to the CJRA, I respectfully offer my hope that
Congress will permit the amendments to take effect on December
1st of this year.

Sincerely,






Wayjie D. Brazil



321



Appendix 11.— Letter From Wayne D. Brazil, U.S. Magistrate,
U S District Court for the Northern District of Califor-
nia TO Hon. William J. Hughes, Chairman, July 14, 1993



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The Honorable William J. Hughes

Chairman, Subcommittee on Intellectual Property and

Judicial Administration
House of Representatives, Committee on the Judiciary
2138 Rayburn House Office Building
Washington, D.C. 20515-6216

Re: Additional Thoughts Supportive of Proposed Amendments to
the Federal Rules of Civil Procedure

Dear Chairman Hughes:

Since writing to you on June 11, 1993 about the proposed
amendments to Federal Rules of Civil Procedure 26 - 37 I have had
an opportunity to review testimony on this subject given before the
Subcommittee on Intellectual Property and Judicial Administration
in the House of Representatives. That testimony prompts me to
share two additional thoughts that I hope are worthy of
consideration.

I fear that many of the opponents of the proposed changes do
not fully appreciate the balance that the judicial branch has very
self-consciously built into these proposals and the fact that they
represent an integrated svstem whose parts are practically and
philosophically interdependent. Most significantly, the
presumptive limits on discovery activity (e.g., on the number of
interrogatories and of depositions) have been justified in no small
part on the theory that the disclosures that would be made under
amended Rule 26(a) (1) and (2) would reduce the need for some of the
discovery that night ^^ nec-ssary if ccro infsrmaticn ?.bc'Jt th=
case was "not otherwise available. The disclosures, in other words,
were intended to balance the limitations on discovery, leaving the
playing field even. I fear that some opponents of the disclosure
proposals either have failed to understand the importance of this
balance or are attempting to sever and suspend the disclosure
portions of the amendments in a self-conscious effort to change the
current balance and gain advantages in litigation.

Opponents of the proposed changes also do not seem to
appreciate the integrated relationship betv/een the disclosure
obligation in Rule 26(a) (1) and the meet and confer/discovery
planning conference that is called for in amended Rule 26(f) and
that virtually everyone seems to support. Eliminating the
disclosure obligation under (a)(1) could seriously compromise the



322



productivity of the meet and confer process under (f). Experience
with meet and confer obligations in other settings, e.g., with
respect to discovery disputes, shows that some lawyers, unless
otherwise constrained, tend to turn meet and confers into hollow
rituals. There is a serious risk that the meet and confers called
for under Rule 26(f) would very often degenerate into such
unproductive rituals if the disclosure obligation were dropped. It
is largely the rule-driven need to come to terms with the
disclosure obligation that would make the meet and confers truly
meaty. Lawyers faced with the requirement to make the disclosures
called for in the rules or the need to re-negotiate the terms of
the disclosure obligation, and lawyers who see an opportunity to
acquire useful information about the case through disclosures made
by their opponents, will feel much greater incentives to
participate meaningfully in the meet and confer process than
lawyers without those obligations and opportunities. In other
words, the reality of the reqjirer.ent of disclosure will make real
the meet and confer process.

Moreover, the disclosures and/or the negotiations about re-
shaping the disclosures to fit the needs of particular cases will
provide counsel with a much richer and more specific information
base on which to do the discovery planning that is supposed to be
the major item on the meet and confer agenda. With disclosure,
discovery planning can be much more productive, focused, and
reliable than it could be without disclosure. In short, removing
disclosure from this system might well eviscerate the meet and
confer process.

These examples expose a more general concern, a concern I
express in a spirit of fulsome respect for the work done by the
committees in the House and Senate who pull the lead oars in
matters related to the judiciary. Because the balance and
integration of the various parts of the package of amendments to
Rules 26 - 37 is so real but in some instances so difficult to
perceive, even after careful examination of the proposals, I fear
that if Congress attempts to selectively delete or change some
parts of the package it will, unintentionally, upset the balance or
disrupt the integration that has been designed into the system,
leaving it out of balance and causing side-effects v;hcse
implications are not fully foreseen. The risk of causing
unintended effects is especially great with respect to these rule
changes, which are considerable in number and which are the product
of literally years of careful consideration by the judges and the
lawyers on the relevant committees of the Judicial Conference.

I am most grateful for your consideration of these thoughts.



Sincerely,



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Wayne D. Brazil



323



Appendix 12. — Letter From Brian Busey and Donna M.
murasky, cochairs, courts, lawyers and the administra-
TION OF Justice Section, the District of Columbia Bar (With
Attachments), to Hon. William J. Hughes, Chairman, June
16, 1993



COURTS, LAWYERS AND THE ADMINISTRATION OF JUSTICE SECTION



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Sii>x>oinniittee on Intellectual Property
i«™««. ^^^^ Judicial Administration
Committee on the Judiciary
United States House of Representatives
Cannon House Office Buiidlnq
Washington, O.C. 20515-6219

Dear Cliairman Huglies:

The Courts, Lavryers , and the Administration of
Justice Section of the District of Columbia Bar respectfully
submits these comments opposing the proposed mandatory
disclosure am«>ndment to Rule 26(a) of the Federal Rules of
Civil Procedure.

INTEllEST or TIIE SECTION

Ttie District of Columbia Bar is the integrated bar
for the District of Columbia. Among the D.C. Bar's
sections, ttie courts. Lawyers, and the Administration of
Justice Section sei*ves as the official clearinghouse for
comments on proposed rule changes in the federal and
liistrict of Columbia rourts . Our Section previously filed
comments, dated February 15, 1992 and August 27, 1992,
opposing an earlier version of the mandatory disclosure rule
and opposing the final version of the new rule wliich was
approved by the Judicial Conference, respectively. Copies
<>( those comments are enclosed for your reference. The
views expressed herein represent only those of the Courts,
Lnwyers, and the Administration of Justice Section and not
those of the U.C. Bar or of its Board of Governors.

COWIENTS

While the Section supports many of the proposed
rule changes transmitted to the Congress by tlie Supreme



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324



Court, the Section opposes mandatory disclosure during
discovery. Mandatory disclosure is intended by its
proponents to work a major, positive change in discovery
practice. Contrary to its goals, however, we expect this
cliange to cause more problems than it will solve.

First, mandatory disclosure will in practice often
delay and complicate the discovery process and increase the
number of discovery disputes that judges must resolve. For
example, mandatory disclosure would add an unnecessary round
to the discovery process in cases in which the parties would
otherwise conduct little or no formal discovery. Although
revisions in the formulation of the disclosure standard were
steps in the right direction, the meaning of the standard
remains ambiguous. This uncertainty increases the
jikeiihood of satellite litigation, especially in light of
tiie severe sanctions that can be imposed for disclosure
judged incomplete in hindsight. Mandatory disclosure also
has the potential to undermine important values protected by
the adversary process including the attorney-client
privilege and the work-product doctrine.

Second, at a minimum, adoption of mandatory
disclosure on a nationwide basis is premature. One of
Congress' goaJs in the Civil Justice Reform Act was to
encourage experimental approaches to discovery so that
alternative methods could be evaluated on the basis of
actual experience. Almost two dozen federal district courts
are now implementing mandatory disclosure on an experimental
basis. The experience in these districts should be reviewed
before mandatory disclosure is permanently implemented
throughout the country. An opportunity for evaluation makes
particular sense in light of the near-universal opposition
to this rule from the bench and from all segments of the
bar.



325



For these reasons, the Section respectfully
requests that the Congress strike the proposed amendment to
Rule 26(a)(1) or, at the very least, delay its
implementation until experience with this rule in
experimental districts can be fully evaluated.

Sincerely yours.




)onna M. MurasTcy
Cd-Chairs, Courts, Lawyers and
the Administration of Justice
Section



Enclosures



cc: Edward O'Connell, Esq.

Carol Ann Cunningham,

D.C. Bar Sections Manager

Carol Elder Bruce

Carol Fortine

Hon. Eric H. Holder, Jr.

David A. Reiser

Donna L. Wulkan

Anthony C. Epstein, Chair, Court Rules
Committee, Courts, Lawyers and
the Administration of Justice



326



COURTS, LAWYERS AND THE ADMINISTRATION
OF JUSTICE SECTION OF THE DISTRICT OF COLUMBIA BAR



LETTER TO THE JUDICIAL

CONFERENCE OF THE UNITED STATES

ON THE PROPOSED DISCLOSURE

AMENDMENT TO RULE 26(a) OF

THE FEDERAL RULES OF

CIVIL PROCEDURE



Brian Busey, Cochair
Donna M. Murasky, Cochair

Carol Elder Bruce
Carol Fortine
Eric H. Holder, Jr.
David A, Reiser
Donna L. Wulkan



August 27, 1992 Steering Committee of the

Courts, Lawyers and the
Administration of Justice
Section



STANDARD DISCLAIMER AND DISCLOSURE

The views expressed herein represent only those of
the Section on Courts, Lawyers and the Administration of
Justice of the District of Columbia Bar and not those of the
Bar or its Board of Governors.



327



Sunmary of Proposed Letter of

the Courts, Lawyers end

The Admlaistration of Justice

Section to the Judicial

Conference of the Onlted States



The Courts, Lawyers and the Administration of Justice Section
and the Court Rules Coomlttee, which regularly monitors and comments on
proposed changes in federal and local court rules, intends to submit a
letter to the Judicial Conference of the United Spates on the proposed
disclosure amendment to Rule 26(a) of the Federal Rules of Civil
Procedure.

The letter notes that the Section previously submitted comments
to the Committee on Rules of Practice and Procedure of the Judicial
Conference on the proposed amendments to the Federal Rules of Civil
Procedure, including proposed amendments to Rule 26(a). In those
comments, the Section specifically opposed the automatic disclosure
feature of the proposed amendments to Rule 26(a).

Following considerable debate, the Advisory Committee on Civil
Rules forwarded a revised version of the proposed amendment to Rule
26(a) to the Committee on Rules of Practice and Procedure. That
committee has, in turn, forwarded the revised version of the changes to
Rule 26(a) to the Judicial Conference for approval, although the revised
version has not been reissued for public comment.

The Litigation Section of the District of Columbia Bar intends
to submit a statement shortly to the Judicial Conference requesting that
the proposed disclosure amendment to Rule 26(a) be returned to the
Committee on Rules of Practice and Procedure for further public comment
and, thereafter, reconsideration. The Section on Courts, Lawyers and
the Administration of Justice joins this request and endorses the
Litigation Section's statement.

The Section believes that the new revised version of the
disclosure amendment to Rule 26(a), while an improvement on the earlier
proposed version, would result in a substantial change from current
discovery practice. The revised version of the disclosure amendment
simply does not address all of the significant concerns expressed in the
Section's comments on the earlier version of that proposal. In view of
the fundamental and far-reaching changes that would be effected by the
proposed amendment, the Section believes that republication and
reconsideration are warranted.



328



COURTS, LAWYERS AND THE ADMII^JISTRATION OF JUSTICE SECTION



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The Chief Justice of the United States

William H. Rehnquist

Chairman, Judicial Conference of

the United States

811 Vermont Avenue, N.W.

Suite 713

Washington, DC 20S44

Dear Mr. Chief Justice:

This letter is submitted on behalf of the Section on
Courts, Lawyers and the Administration of Justice of the
District of Columbia Bar and that Section's Committee on Court
Rules.!/

In February 1992, this Section submitted comments to the
Committee on Rules of Practice and Procedure of the Judicial
Conference of the United States on the proposed amendments to
the Federal Rules of Civil Procedure and the Federal Rules of
Evidence. Among those comments were comments on the proposed
amendments to Rule 26(a) of the Federal Rules of Civil
Procedure, as published for public comment by the Advisory



1/ The views expressed herein represent only those of the
Section on Courts, Lawyers and the Administration of
Justice of the District of Columbia Bar and not those of
the Bar or its Board of Governors.



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329



Committee on Civil Rules in August 1991. The Section opposed
the automatic disclosure feature of the proposed rule.

The Advisory Committee on Civil Rules - has now forwarded
a new proposed amendment to Rule 26(a) to the Committee on
Rules of Practice and Procedure. We understand that that
Committee has, in turn, forwarded the new proposal to the
Judicial Conference for approval. The new proposed rule has
not been reissued for public comment.

The Litigation Section of the District of Columbia Bar
has adopted and is submitting a statement to the Judicial
Conference of the United States requesting the Conference to
return the proposed disclosure amendment to Rule 26(a) to the
Committee on Rules of Practice and Procedure for
reconsideration following an opportunity for public comment.
The Section on Courts, Lawyers and the Administration of
Justice of the District of Columbia Bar joins the request of
the Litigation Section and endorses its statement in support
of republication and reconsideration.

In addition, the Section on Courts, Lawyers and the
Administration of Justice believes that the new version of the
automatic disclosure proposal itself would effect a
substantial change from current discovery practice and
continues to raise significant issues worthy of public
comment. Although the Section believes that the revision does
represent an improvement over the original proposal, it does
not, in our view, adequately address all of the concerns
identified in our prior comments and in the comments of other
members of the legal community.



330^



We look forward to an opportunity to provide detailed
conunents on the proposed amendments to Rule 26(a) to the
Committee on Rules of Practice and Procedure in the event that
the new proposal is republished for public comment.



Respectfully submitted.



rian Busey ^^^^ hv^^

Donna M. Murasky Cr

Cochairs, Section on Courts,
Lawyers and the Administration
of Justice





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Thomas C. Papson

Richard B. Nettler