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

Cochairs, Committee on Court Rules



cc: The Honorable Robert E. Keeton (Boston Chambers)
Professor Thomas E. Baker
The Honorable William 0. Bertelsman
The Honorable Frank H, Easterbrook
The Honorable T.S. Ellis, III
Alan W. Perry, Esquire
The Honorable Edwin J. Peterson
The Honorable George C. Pratt
The Honorable Dolores K. Sloviter
The Honorable Alicemarie H. Stotler
The Honorable George J. Terwilliger, III
William R. Wilson, Esquire
Professor Charles Alan Wright
Dean Daniel Coquillette
Joseph F. Spaniol, Jr., Esquire



331



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



COMMENTS ON PROPOSED AMENDMENTS
TO THE FEDERAL RULES OF CIVIL PROCEDURE
AND THE FEDERAL RULES OF EVIDENCE



Carol Elder Bruce, Cochair
Randell Hunt Norton, Cochair
Hon. Eric H. Holder, Jr.
Jeffrey F. Liss
Donna M. Murasky
David A. Reiser



Steering Conunittee
Courts, Lawyers and the
Administration of
Justice Section of the
District of Columbia Bar



Richard B. Nettler, Cochair
Thomas C. Papson,- Cochair*
Joel Bennett
Brian Busey
Anthony C. Epstein*
James R. Klimaski*
Michael K. Madden*
Michael E. Zielinski*

Committee on Court Rules



February 15, 1992



^ Principal authors



STANDARD DISCLAIMER

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.



332



BRIEF SUMMARY OF COMMENTS BY THE
SECTION ON COURTS, LAWYERS, AND THE ADMINISTRATION
OF JUSTICE ON PROPOSED AMENDMENTS TO THE FEDERAL RULES
OF CIVIL PROCEDURE AND THE FEDERAL RULES OF EVIDENCE

The Section on Courts, Lawyers, and the Administration of
Justice and its Committee on Court Rules has commented on the
preliminary draft of amendments to the Federal Rules of Civil
Procedure and the Federal Rules of Evidence proposed by the
Judicial Conference Advisory Committee on Civil Rules. While
generally supporting the proposed changes, the Section raises
questions about (1) the practical effects of the proposed changes
to Rule 11 (particularly the provision permitting a "safe harbor"
for improper filings if they are withdrawn in a timely fashion) ;
(2) the automatic disclosure discovery provisions with respect to
"core information" and (3) the practical effects of the changes
with respect to discovery relating to experts and the trial
testimony of experts.



333



COMMENTS OF THE SECTION ON COURTS, LAWYERS,

AND THE ADMINISTRATION 07 JUSTICE

or THE DISTRICT OF COLUMBIA BAR ON

PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE

AND THE FEDERAL RULES OF EVIDENCE



The Committee on Rules of Practice and Procedure of
the Judicial Conference of the United States has solicited
comments on a preliminary draft of amendments to the Federal
Rules of Civil Procedure and the Federal Rules of Evidence
proposed by the Judicial Conference Advisory Committee on
Civil Rules. The Section on Courts, Lawyers, and the Admin-
istration of Justice of the District of Columbia Bar, and its
Committee on Court Rules, submit these comments concerning
certain of these proposals.

The District of Columbia's Bar is the integrated
bar for the District of Columbia. Among the Bar's sections
is the Section on Courts, Lawyers, and the Administration of
Justice. The Section has a standing Committee on Court
Rules, whose responsibilities include serving as a clear-
inghouse for comments on proposed changes to court rules.
Comments submitted by the Section represent only its views,
and not those of the D.C. Bar or of its Board of Governors.

The proposed amendments to the Federal Rules fall
into four basic categories. The first category consists of
changes to Rule 11 of the Federal Rules of Civil Procedure.
Although we do not take a position concerning the basic
substance of the proposed Rule, we do suggest ways in which
the proposal could be improved — particularly with respect
to the "safe harbor" provision — if its general approach is
adopted-



334



The second category of proposed amendments deals
with changes to the discovery process. The most significant
of these changes would restructure the discovery process by
requiring automatic disclosure of certain information and
postponement of additional discovery until that disclosure is
complete. We believe that the automatic disclosure procedure
would delay and complicate the discovery process. We support
other proposed changes, for example, imposing limitations on
depositions and interrogatories. We also suggest modifica-
tions of some other aspects of the proposed discovery chang-
es.

Third, we generally support the proposed amendments
to Rule 56, which would make the Rule consistent with actual
practice and with developments in the case law. We comment
on two relatively minor aspects of the proposed rule for
summary adjudication, involving the mechanism for identifying
facts not genuinely in dispute and the possibility of hear-
ings with oral testimony.

Finally, we generally endorse the proposed changes
dealing with expert witnesses as a reasonable measure to
reduce the unnecessary use of experts and the cost of litiga-
tion. We do, however, question whether expert depositions
should be admissible regardless of the availability of the
expert.

Our specific comments follow.



335



RULE 11

Perhaps no provision in the Federal Rules of Civil
Procedure has engendered as much recent controversy among
judges and lawyers as has Rule 11. We do not take a position
in thp ongoing debate about whether Rule 11 goes too far or
not far enough in making sanctions available. The proposed
amendment appears intended to make relatively modest* changes
in the Rule. We identify concerns and suggest modifications
about the way the proposed Rule implements its approach.

In our view, the most significant change in Rule 11
would be to create a "safe harbor" for even the most egre-
gious Rule 11 violation — to give parties or counsel abso-
lute protection against sanctions if they withdraw a filing
after receiving reasonable notice of opposing parties'
contention that the filing violates Rule 11. We have no
objection to a requirement that, before seeking Rule 11
sanctions, a party provide notice through a simple statement
describing the objections to the challenged filing, 'so that
the other party has an opportunity to withdraw the filing.
Such a requirement would be consistent with current practice
and with some local rules.

However, the type and method of notice required
under the proposeu amendment is unclear and perhaps unduly
burdensome. Rule 11(c) (1) (A) appears to require service of a
party's motion or the Court's order to show cause as the
mechanism for providing notice. Any requirement that the
alleged victim of a Rule 11 violation prepare a formal



336



motion, accompanied perhaps by a detailed memorandum of law
and supporting evidence, could operate as a substantial
deterrent to pursuit of significant Rule 11 violations if the
alleged violator could completely avoid sanctions by with-
drawing a filing after forcing the alleged victim to incur
that burden and expense.

The proposed Rule is ambiguous as to whether the
party receiving a show cause order under subsection (c) (1) (B)
may withdraw or correct the offending filing and thereby
avoid sanctions, as the party may under subsection (_c) (1) (A) .
We see no reason for such a distinction, and the safe harbor
should be as broad for challenges initiated by the court as
for those initiated by parties.

The proposed revision is also ambiguous about when
the movant notifies the Court of a Rule 11 challenge.
Subparagraph (c) (1) (A) provides that a sanctions motion is to
be served upon the party that filed the challenged paper 21
days before it is filed with the Court. But the parentheti-
cal phrase of this subparagraph also indicates that some
notice apparently should be given to the Court before 21 days
have elapsed, at least if the Court is asked to prescribe
"such other time" for withdrawal or correction. In addition,
the Rule should make clear that the time for response begins
to run 21 days after service, not from the day of service as
some local rules provide. E.g. . Local Rule 108(b) (D.D.C.).
The motion procedure should be described more specifically if
this proposed change is ultimately adopted.



337



Finally, the proposed revision apparently requires
parties to amend their filings each time new facts are
discovered that make it improper to maintain any contention
that was reasonable when initially made. Although the "safe
harbor" provision in subsection (c) tends to mitigate the
practical impact of this requirement, it could subject both
courts and counsel to the burden of frequent motions to amend
the pleadings, even with respect to relatively insignificant
facts. If this is the intended effect, it should be clari-
fied.

DISCOVERY

Automatic Disclosures

The Section believes that the automatic disclosure
procedure, particularly with respect to witnesses and docu-
ments, would accomplish little in most cases except to delay
the completion of discovery. Given the relatively limited
scope of the initial disclosures, and the concern that
opposing parties would interpret them more narrowly than
appropriate, each party could be expected to serve subsequent
interrogatories and document requests as broad as those now
in use. However, under the proposal, such discovery requests
could not be served, and no responses would be obtained,
until some time after the initial automatic disclosure.
Thus, the automatic disclosure procedure would probably not
achieve its intended result of simplifying and expediting the
discovery process, but would rather cause delay and complica-



338



tion. An alternative, simpler way to ensure that discovery
begins promptly would be to require initial discovery re-
quests to be served within a specified time after issue is
joined.

Compounding our concerns about the automatic
disclosure requirement is the likely uncertainty about the
scope of the required initial disclosures^: how does a party
decide whether a person or category of dociiment "bears
significantly on any claim or defense"? Particularly at the
early pleading stage, and in more complicated cases, a party
cannot always anticipate the theories underlying another
party's claims or defenses. The Committee Note states that
"counsel are expected to disclose the identity of those
persons who, if their potential testimony were )cnown, might
reasonably be expected to be deposed or called as a witness
by any of the parties." Yet, opposing counsel may often
legitimately differ about who might be expected to be deposed
or called as a witness.

Because of the possibility of severe sanctions
resulting from an incomplete disclosure, the risks resulting
from uncertainty about the scope of disclosure are serious.
While the same kinds of risks currently exist to a certain
extent with respect to case-specific discovery requests, a
responding party can protect itself by objecting to vague and
ambiguous requests. Moreover, the opportunity for mandatory
preclusion under proposed Rule 37(c)(1) might result in more
discovery motions by encouraging parties regularly to chal-



339



lenge the completeness of disclosures. At the very least,
adoption of the proposal would lead to several years of
costly litigation about the scope of the initial disclosure
obligation in districts around the county.

For these reasons, we do not support the proposed
requirement for initial automatic disclosure. If, however,
that provision is retained, we recommend that proposed Rule
37(c)(1) be modified so that the preclusion sanction is more
discretionary. The proposed Rule mandates preclusion for any
failure to disclosure that lacks substantial justification
and is not harmless. Even if the failure does not satisfy
those tests, preclusion may be too drastic a sanction — for
example, a negligent failure to disclose evidence critical to
a party's case until after the close of discovery but signif-
icantly in advance of trial. This modest change would be
consistent with the proposed amendment to Rule 11 emphasizing
the need for flexibility in the selection of sanctions.

Pretrial Disclosures

The Section agrees in concept with subdivision
(a)(3), which requires disclosure 30 days before trial of
witnesses, exhibits, and certain other information. These
disclosure requirements are already imposed in most cases by
local rule or pretrial order.

The Section, however, questions the feasibility and
usefulness of distinguishing between witnesses and exhibits
that a party "expects" to present and those it "may" present.



340



The proposed Comnittee Note states that the latter are those
witnesses or exhibits that "will be presented only i^ needed
because of unanticipated developments during trial." It is
likely to be difficult to identify witnesses and exhibits
that may be necessitated by "unanticipated" developments.
Moreover, as a practical matter, most counsel, out of cau-
tion, may list witnesses and exhibits as *" expect ed, " thus
minimizing the benefit from separating "expected" from
"possible" witnesses and exhibits.

Finally, the proposed rule provides that the filing
deadlines in the rule would be superseded if a different time
is specified by the court. The rule or the comment should
make clear that the court can establish different deadlines
either by order in a particular case or by local rule. For
example, Rule 209 of the Rules of the U.S. District Court for
the District of Colximbia requires that trial witnesses and
exhibits (in addition to other information) be listed in a
pretrial statement to be filed not less that eleven days
before the final pretrial conference.

Informal Resolution of Discovery Disputes

Proposed Rules 26(c), 37(a)(2), and 37(d) would
require that motionr for a protective order, to compel, or
for sanctions be accompanied by a certification that the
movant in good faith has conferred or attempted to confer
with the opposing party to attempt to resolve the matter
without court action. We support such a requirement, which



341



is not uncommon under local rules in federal courts and in
state court rules.

Depositions

We support the proposed presumptive limit in Rule
3 on the number (10 per side) and length (6 hours) of
depositions. We suggest that the Rule or' the comments
clarify how the limit would apply to defendants filing cross-
claims or third-party claims. Would a defendant filing a
cross-claim or third-party complaint be limited to the ten
depositions permitted to defendants, or would it be permitted
an additional ten depositions in its capacity as cross-
claimant or third-party plaintiff? In many cases the issues
raised by a cross-claim are tied closely enough to the issues
raised by the underlying complaint that a cross-claimant
would not need an additional ten depositions. However,
because this might not be the case with a third-party com-
plaint, consideration should be given to providing in the
Rule for additional depositions for third-party plaintiffs,
especially since third-party defendants are permitted ten
depositions.

Interroqa*'ories

We support a limit in Rule 3 3 on the number of
interrogatories, but recommend that the limit be increased to
30 or 40 interrogatories. A limit of 15 interrogatories is
too low, particularly in light of the ambiguity of what



342



constitutes a "sxibpart." For comparative purposes, we note
that the District of Columbia Superior Court Civil Rules
permit 40 interrogatories, and that the Local Rules of the
U.S. District Courts for the District of Maryland and for the
Eastern District of Virginia each permit 30 interrogatories.

SUMMARY AOJUDICATIOM

Although the proposed amendments would substantial-
ly revise the language of Rule 56, most of the revisions
would simply make that language consistent with actual
practice and with developments in the case law. The Section
generally endorses these revisions. We offer comments on two
aspects of the proposal.

First, subsection (c) of the revised rule would
require that the motion for summary adjudication "recite, in
separately numbered paragraphs, the specific facts asserted
to be not genuinely in dispute." This is very similar to the
requirement found in many local rules that has become a
fairly standard part of summary judgment practice. Under-
most local rules, however, the statement of facts as to which
there is no genuine dispute is ordinarily a filing separate
from the motion itself. See, e.g. . Local Rule 108(h)
(D.D.C.) (motions for summary judgment to "be accompanied by
a statement of material facts as to which the moving party
contends there is no genuine issue") . Such statements are
often quite lengthy. Further, in many districts, either by
rule or practice, legal memoranda or points and authorities



343



in support of a motion are placed in a document separate from
the written motion, and the motion itself is relatively
cursory.

We see no reason why the Federal Rule should
mandate that the factual recitation be part of the motion,
thereby requiring a departure from established practice in
many districts. Accordingly, we recommend that the rule be
amended to provide that the recitation of specific facts
asserted to be not genuinely in dispute may be submitted
either in the motion, the supporting memorandum, or in a
separate statement of facts.

Second, subsection (g) of the revised rule is a new
provision entitled "Conduct of Proceedings." It provides, in
part, that the court "may conduct a hearing to . . . receive
oral testimony to clarify whether an asserted fact is genu-
inely in dispute." The Committee Note states that the
purpose of such testimony would be "to clarify ambiguities in
the submitted materials — for example, to clarify inconsis-
tencies within a person's deposition or between an affidavit
and the affiant's deposition testimony." According to the
Note, the evidentiary hearing would be held "not to allow
credibility choices between conflicting evidence but simply
to determine just what the person's testimony is." The Note
states that the new authority under subsection (g) would not
"supplant" the existing authority under Rule 42(b) to hold
hearings on issues that involve credibility and weight of
evidence.



344



He are concerned that the revised rule does not
sufficiently constrain the court's limited authority in the
sumoary adjudication context. In contrast to Rule 42(b)
hearings, it will be very difficult in the Rule 56 context
for a court to draw the fine line between making credibility
choices and merely deciding "just what the person's testimony
is" in an oral hearing under new Rule 56(g). We therefore
suggest that the fourth clause in proposed Rule 56(g) be
deleted.

EXPERT WITKE88BS

We generally support the proposed changes dealing
with testimony by expert witnesses in Rules 16 and 32 of the
Federal Rules of Civil Procedure and Rules 702 and 705 of the
Federal Rules of Evidence. A principal purpose of the
proposed changes in the Federal Rules of Evidence is. to limit
the unnecessary or unduly expensive use of experts. We be-
lieve that this proposal represents a reasonable attempt to
achieve the goals of restraining the expanding use of expert
witnesses and securing the just, speedy and less costly
resolution of litigation.

The requirement in proposed Rule 26(a)(2) that
experts provide a detailed report about their expected
testimony, if enforced by the courts, should result in some
reduction to the need to take depositions of expert witness-
es. The practical benefit of this approach is enhanced by
the provision in proposed Rule 26(a)(2)(C) expressly autho-



345



rizing courts, by local rule or orders in particular case, to
alter the type or form of disclosure. However, the rule
should specify whether or not drafts of these required
reports are discoverable. There are substantial arguments
for and against discoverability, and the issue should be
addressed in the rule, rather than left for case-by-case
adjudication.

We suggest the following modification of proposed
Rule 32(a)(3)(D), which would permit the use of the deposi-
tion of an expert witness without having to establish the
expert's unavailability. Use of such depositions at trial
regardless of the expert's availability is appropriate
provided that two conditions are satisfied. First , the party
that intends to use the deposition at trial should provide
notice before the deposition of that intent. Second , any
party against which the deposition would be used should have
an opportunity, within the time provided by rule or by order,
to take a discovejry deposition before the deposition that is
expected to be used at trial.

These conditions are necessary because the relax-
ation of admissibility of expert depositions would tend to
require every expert deposition to be conducted as a de bene
esse deposition. With witness unavailability eliminated as a
requirement for admissibility, a party that deposes the
opposing expert would be exposed to use of the deposition at
trial at the sole discretion of the opposing party. The
party whose expert witness has been deposed — at the oppo-



346



nent's expense — might be willing to avoid the expense and
uncertainty of producing the witness at trial by using the
deposition. AS a practical matter, <ag tpgne esse depositions
are substantially different from discovery depositions. The
two conditions that we suggest in the preceding paragraph
would achieve two purposes: they would give the parties
fair notice that the deposition should be conducted as a dg
bene esse deposition; and they would permit the opportunity
for discovery of the expert before taking the deposition in a
manner suitable for use at trial.



347



Appendix 13. — Letter From Hon. Butler Derrick, a Represent-
ative IN Congress From the State of South Carolesta, May
12, 1993, Transmitting a Letter From Ashley B. Abel, Esq.,
Spartanburg, SC, May 3, 1993, to Hon. William J. Hughes,
Chairman



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The Honorable William J. Hughes. Chairman
Subcommittee on Intellectual Property and

Judicial Administration
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Washington, D.C. 20515



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Dear Mr. Chairman:

Enclosed for your review la a copy of a letter I have received from
Ashley Abel, an attorney from Spartanburg, South Carolina. Mr. Abel objects
to the amendments to the Federal Rules of Civil Procedure as proposed by zir.e
Supreme Court. I ask that Mr. Abel ' s comments be made a part of your
subcommittee' s review process of this recommendation.

Thantc you for your attention to this matter.

With kindest regards, I am



Respec




BUTLER DERRICK
Meir^^r of Congress



D/wi
Enclosure



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348



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May 3, 1993



Representative Butler Derrick

United States House of Representatives

Washington, DC 20515

Re: Proposed Changes to the Federal Rules of Civil Procedure

Dear Rd^j^seiU^tlVfe UeriTlCk:

It is my understanding that on April 22, 1993, the U.S.
Supreme Court forwarded to Congress a package of amendments to the
Federal Rules of Civil Procedure. These amendments will take
effect on December 1, 1993, unless Congress takes action by
November 1, 1993. I am writing to express my strong opposition to
some of these amendments and to ask for your help in deleting them.

First, these amendments substantially change Federal Rule of
Civil Procedure No. 11. Rule 11 is the rule of civil procedure
that provides federal judges the authority to sanction attorneys