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

and/or parties who abuse the processes of the court by filing
frivolous claims or defenses, by making arguments that are clearly
not warranted by existing law or other facts, or who use the
litigation process to harass or cause unnecessary delay or cost to
other parties. The proposed amendment to Rule 11 would take much
of the teeth out of the. rule by limiting the situations to which
the rule applies, by allowing abusers 21 days to withdraw any
offending pleading and avoid possibility of sanctions, and by
encouraging the use of nonmonetary sanctions or penalties paid to
the court rather than to the prevailing party as compensation for
the wrongdoer's acts. Most tellingly, a Federal Judicial Center
survey s^^owed that 80% of judges believe that the current Rule 11
should be retained and that the amendment should not be passed. I
strongly urge you to see that this does not happen.

Second, the proposed amendments to the discovery process would
provide for the mandatory exchange of so-called "core information"
between parties in every case. Since this amendment would only add
another layer of discovery to the already abundant discovery
devices contained in the rules, it would do nothing to shorten or
decrease the expense of litigation and do much to add a further
element of cost and delay to every proceeding. Therefore, I
strongly oppose these amendments as well.



349



Please let me know your thoughts on this issue as soon as
possible. I trust that you will agree that these amendments are
not in the best interest of the judicial processes of our nation
and that you will fight to prevent them from being enacted.



I remain.



ABA : mrm



P-/.



Very truly yours,

EDWARDS, BALLARD, BISHOP,
STURM -^ CLARK AND KEIM, P. A.




Ashley B/ Abel






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350



Appendix 14.— Letter From Hon. William J. Hughes,
Chairman, to Hon. Butler Derrick, June 2, 1993



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June 2, 1993



The Honorable Butler Derrick
U. S. House of Representatives
221 Cannon House Office Building
Washington, D.C. 20515

Dear Butler:

I want to thank you for forwarding to me Mr. Ashley Abel's comaents
on the proposed changes to the Federal Rules of Civil Procedure.

The Subcommittee on Intellectual Property and Judicial
Administration will hold an oversight hearing on this subject on
June 16, 1993, and I will enter Mr. Abel's remarks as part of the
record of that hearing.

Again, thank you for your interest in this important matter.

Since^i^y,




illlam J. Hughes
'Chairman

Subcommittee on Intellectual Property
and Judicial Administration

WJH : eov



351



Appendix 15.— Letter From Sam C. Pointer, Jr., Chairman, Ad-
visory Committee on Civil Rules, Judicial Conference of
the United States, to Hon. William J. Hughes, Chairman,
June 25, 1993



ROBERT E. KEETON

CHAIRMAN

PETER Q McCABE
SECRETARY



COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES
WASHINGTON. D.C. 20544



do/< :



i^'^JS



June 25. 1993



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

and Judicial Administration
Committee on the Judiciary
United States House of Representatives
Washington. DC 20515

Dear Mr. Chairman:



RECEIVED

JUN2 9 1993
Sub on Courts



CHAIRMEN OF ADVISORY COMMITTEES

KENNETH F RIPPLE
APPEUATE RULES



EOWARO LEAW
BANKRUPTCY RULES



SAM C. POINTER. JR
CIVIL RULES



WILUAM TERRELL HOOGES
CRIMINAL RULES



RALPH K. WINTER. JR
EVIOCNCE RULES



Thank you for the opportunity to appear before the Subcommittee on June 16. 19*^?.
and discuss the new amendments to the Federal Rules of Civil Procedure. I particularly
appreciated the obvious preparation by Subcommittee members and the thoughtful questions
that focussed attention on some of the issues of most concern to you and the other members
of the Subcommittee.

Enclosed is a revision of my prepared remarks, which I ask be substituted in the
record tor the draft initially submitted. The revision merely corrects certain grammatical
and typographical errors.

Before responding to certain additional questions from the Subcommittee received
after completion of the hearing. 1 would like to make a few general obsenations.

The Subcommittee heard, in abbreviated fashion, the same types of comments which
were presented, in far greater detail, to the .Advisory Committee over a period of man\
months. That a majority of comments criticized some portion of the amended rules is. ot
course, neither surprising nor unusual. .Members of Congress are well aware of the
phenomenon that, when needed reforms are transformed into specific proposals — which
often must balance competing interests and values — groups with special interests uill
attempt to isolate and criticize certain portions of the proposals with which they are
displeased. Nor is it significant that most of the oral presentations to the .Advison
Committee were critical of some portion of the amendments: indeed, this was a deliberate
choice hy the Advisory Committee, which in its hearings was not attempting to "build a
record" but rather to better understand and evaluate the objections to the proposed
amendments.



Most of the criticisms heard i/y the Subcommittee were ones that, from the matters
previously presented to the Advisory Committee. I was able to anticipate and address. .As
earlier indicated, some of thesr criticisms are not frivolous and. indeed, were taken seriously
by the .Advi.>or\ Committee ;:nd Standing Committee in developing the rules ultsmateK



352



adopted by the Supreme Court. It should be emphasized, however, that many attorneys and
litigants, typically on the defense side of litigation, basically are concerned that the
disclosure rules will work ... and on occasion to their disadvantage. One of the speakers
before the Subcommittee candidly acknowledged that his basic objection to disclosure was
not that it would require disclosure of information not subject to discovery, generate
disputes, or increase costs, but rather that in some cases, because of the way a discovery
request is phrased by an adversary, he has been able under the prior rules to avoid — or
at least delay — disclosing information needed by an adversary to prepare for trial or
oppose a summary judgment motion. This concern is not with frivolous litigation, but with
the loss of a procedural device that, like common law pleading, can sometimes be used to
defeat potentially meritorious litigation. The speaker's candor was commendable, and
indeed was frequently acknowledged by many who wrote or spoke to us during the rule-
making process. The Advisory Committee, however, believes that this approach is
inconsistent with the aims of Rule 1 ("the just, speedy, and inexpensive determination of
every action") and is not required by our adversary system.

Q4. Should the Advisory Committee have included in its comments an indication that
the disclosure rules are not intended for cases like Social Security reviews,
bankruptcy appeals, and similar cases decided on written record?

Yes, and in fact this guidance is given in the Committee's Note to Rule 26(a)(1) and
to Rule 26(0, found at pp. 226 and 241 of House Document 103-74.

Additionally, at a meeting of Chief District Judges for all of the districts, held in
Washington April 29-30, 1993, I discussed this matter — along with others relating to
options under the new rules — and highlighted the fact that each court should, before
December 1, 1993, decide which cases to exempt from the disclosure requirements.

I plan to provide in writing to each district court, well in advance of the December
1st date, additional suggestions concerning their options under the new rules. The
development of these suggestions is, however, complicated at the present time by the
possibility of legislation that might affect the type of action the courts would need to take
in order to make their choices under the amended rules and the CJRA.

Q5. Do you expect that at some time in the future the disclosure process, with its
emphasis on local options, will be re-examined and a true national federal rule
would be adopted?

Yes. The inclusion of broad options for local variations should be viewed as
essentially an interim measure, needed to complement the mandates of the CJRA for local
experimentation and variants. When that period is concluded, I would expect modifications
in the federal rules to be developed through the rule-making process which would
reestablish more uniform national procedures. These would be based upon an analysis of



353

the experiences — successful and uiisuccessful — of courts under their local expense and
delay reduction plans.

This approach is in accord with the CJRA. Section 105(c) of Pub. L. 101-650 calls
for the Judicial Conference to complete by December 31, 1995, a study of the experiences
of 20 districts, and then, based on that study, to "initiate proceedings for the prescription of
rules implementing its recommendation, pursuant to chapter 131 of title 28."

Q12. What, in your experience, is the most common cause of discovery abuse?

I believe that the central problem is the excessive number and length of depositions.
Too frequently, counsel act as if every possible witness must be formally deposed and as if
every possible question should be asked during the deposition. The amended rules should
go a long way in remedying this abuse.

A close second is excessive and inefficient document production. The amended rules
take a few small steps that may help to correct this problem. However, I confess that we
have been unable to tind a good answer for this problem, and will be looking closely at local
plans to see if any of them develop better solutions that might be incorporated into national
rules.

Q15. Arc Rule II questions now generally court-initiated or adversary-initiated?

The great majority of Rule 1 1 questions have been initiated as a result of a party's
motion, rather than sua sponte action by the court.

The 19^)0 FJC study looked at Rule II activity in 5 district courts covering periods
of 22 to 39 months. For the periods covered, the total number of Rule II motions or sua
sponte orders in the five courts was 1,264. with only 67 — or 5% — of these being sua
sponte orders.

The FJC survey of federal district judges conducted in November 1990 retlected that
69.2% of the 549 responding judges indicated they could not remember i.ssuing any sua
sponte order under Rule 11 in the preceding 12 months. It might be noted, however, that
over two-thirds of them indicated that they, in the preceding 12 months, advised counsel that
a particular filing might lead to Rule 11 sanctions.

Q.17 What would be the problem in deferring the disclosure procedure for one year to
study the impact ol disclosure of the 20 courts subject to the special study?

I addressed this question briefly at the hearing, but some additional comments might
be helpful.

It is ver\' important that the neu Rules — with their broad authorization for local



354



variation — take effect on December 1, 1993, which is the same date that all 94 districts
must have adopted their local CJRA plans. It is also important that further changes in the
national rules regarding disclosure not be considered until after completion of the study of
the 20 courts due by December 31, 1995. After that date, consideration of further changes
will be appropriate — indeed, is mandated under the CJRA (see question 5). Proposals at
that time for further amendments should be handled through the regular rule-making
process, which enables the appropriate committees of the Judicial Conference to draft and
publish proposed changes and then provides substantial time for suggestions, criticisms, etc.
to be made by the bench, bar, and public to these committees. Proposed changes would
then be subject to scrutiny by the Judicial Conference, sent to the Supreme Court, and if
adopted transmitted to Congress with the 7-month delay period before they became
effective. Our best estimate is that new rules, following the schedule directed under the
CJRA, could not become effective until December 1, 1998. It would be a major mistake
to short-cut this process and attempt to explore these difficult questions directly with
Congressional committees, without the extensive prior deliberation provided by the rule-
making process. This is particularly true because the Judicial Conference has a statutory
mandate to consider initiation of possible rules changes after December 31, 1995.

It was for these reasons that, at the hearing, I indicated that legislation deferring or
suspending the effective date of the disclosure requirements — whether for one year or, as
the ABA suggests, for 2 years — would, in my opinion, be the worst course of action. If
Congress is unwilling for some of the rules to take effect on December 1, 1993, as
scheduled, it would be far preferable, in my opinion, for those rules to be rejected at this
time, rather than suspended or deferred for later consideration and possible modification
by Congress outside the rule-making proce.ss. In making this comment, I am assuming, of
course, that any such rejection would be accompanied by appropriate statutory language or
legislative history making clear that this action would not impair the authority of districts
to adopt such procedures under their local CJRA plans or preclude possible amendments
relating to such subjects if adopted under the rule-making process after the experimentation
period.

Minority Question: Is the amendment to Rule 30(b)(4) prompted by complaints regarding
the cost or delay involved with stenographic depositions?

No. While some may argue that video-taped depositions are less expensive than
stenographically-recorded depositions, this is a matter that depends upon a number of
factors, such as the availability of reporting services, the place where depositions will be
conducted, and the likelihood that, after a deposition is taken, a written transcript will be
needed. Nor did the Advisory Committee receive any significant criticism of the time taken
by court reporters in providing transcripts.

The purpose of the amendments is to provide in the rules some safeguards to protect
the fairness and integrity of the record when a deposition is recorded by other than
stenographic means (rather than having to deal with these matters on an ad hoc basis); to



355



assure that a written transcript will be provided to the court and other litigants when a
video-taped deposition is used at trial; and to eliminate the need for judicial involvement
regarding the method of recording a deposition except when some special problem arises
that merits a Rule 2()(c) motion.

Without intending any criticism of the services provided by court reporters in
recording depositions, I would like to comment briefly on one point presented orallv at the
hearing by one of the other speakers. The point was made that court reporters provide an
essential role as an independent, neutral recorder of the deposition. This same point could
just as well have been made respecting persons who videotape a deposition, for the same
rules (Rule 28(c) and Rule 29) prescribe standards regarding the independence of such
persons.

As I emphasized at the hearing, this rule does not in any way affect the use of court
reporters to record trials and does not indicate any disaffection by the judiciary with the
recording of trial proceedings by court reporters,-^ In this connection, it may be noted that
another Judicial Conference committee within the last two weeks has concluded that the
current experimentation with video-taping of trials in lieu of a stenographic transcript should
not be extended, and that the ovenvhelming majority of district judges have continued to
have proceedings before them recorded by a court reporter rather than by adopting the
alternative for audio-recording equipment.

1 will be happy to respond to any further questions the Subcommittee may have and,
as earlier indicated, stand ready to work with your staff in providing technical assistance
should — which I hope will not occur — legislation be pursued.

Sincerely,

â–  /

~ - ^ â–  " ' /

Sam C. Pointer, Jr. /

end: Re\ision of Prepared Remarks



1. It in.iy he nolctl iIkiI \\\c\c .irc nim[n.lLiu\ sl;inci;irils governing ihc eniplovincnt bv Icdcrjl courts of
oirici;il court reporters. Tliere .iie no such sl.uiil.irus respecting those who .ire employed hv parties to transcribe
a deposilion. Markel-pl.icc coiisiilcr.ilions, houc\cr. have generally resulted in relati\clv lew incompetent free-
lance reporters being empli'V.a in record depositions.



r



356



Appendix 16. — Letter From Patricia M. Hynes, Chair, Commit-
tee ON Federal Courts, Association of the Bar of the City
OF New York (With Attachments), to Hon. William J.
Hughes, June 23, 1993



THE ASSOCMTION OF THE BAR
OF THE CITY OF NEW YORK

42 WEST 44TH STREET
NEW YORK NY 10036-6«90



COMMITTEE ON FEDERAL COURTS



PATRICIA M MYNES

CHAIR

ONE PENNSYLVANIA PLAZA

49lh FLOOR

NEW YORK NY 10119

12121 594-5300

FAX • 12121 86a-l229



SANFOROP OUM*irj

SECRETARY

ONE PENNSYLVANIA HLAJ

■«»ln FLOOH

NEW rORK NY 11, lis

12121394 5300

FAX •i212)S68 ii?2^



June 23, 1993



VIA FEDERAL EXPRESS



Hon. William J. Hughes, Chair

House Judiciary Subcommittee on Intellectual

Property and Judicial Administration
Room 207

Cannon House Office Building
Washington, DC 20515

Re: Congressional Consideration of Proposed
Amendments to the Federal Rules of
Civil Procedure

Dear Congressman Hughes:

On behalf of the Committee on Federal Courts of the
Association of the Bar of the City of New York, I wish to submit
for your consideration the Association's comments regarding
proposed amendments to the Federal Rules of Civil Procedure, which
were transmitted to Congress by the Supreme Court on April 22.

These written comments were previously submitted to the
Civil Rules Advisory Committee of the Judicial Conference when it
was considering this package of amendments. The Association also
testified before the Advisory Committee at its hearing in Atlanta
on February 19, 1992. As you may know, we contacted Subcommittee
staff and requested to testify at the June 16 hearing on this
matter. We were informed that this would not be possible but that
we could submit written comments for the record due by June 25.
The remainder of this letter updates and amplifies our earlier
comments and is submitted with them for the record of the hearing.



357



As more fully described in the enclosed comments, the
Association opposes the disclosure and discovery changes because:

— The disclosure system will add an additional layer of
discovery and pretrial procedure that is likely to increase cost
rather than streamline litigation;

— The novelty of the disclosure scheme presents
opportunities for strategic behavior designed to delay actions or
raise an opponent's costs rather than to truly illuminate the
issues in dispute;

— To have any chance of being effective, disclosure must
be closely supervised by trial judges or magistrate judges who are
already pressed for time and who have historically been
unenthusiastic about policing the existing discovery mechanism. In
our view, the time and effort of the bench would be better spent in
"riding herd" on the existing system with which attorneys are
familiar rather than wading into a new arena that can quickly turn
into a preliminary round of litigation activity that merely
precedes and enlarges upon the already existing discovery
mechanism;

— At least during the early years of its use, the
disclosure system v.-ould be subject to conflicting interpretations,
requiring substantial expenditures of judicial time. This is
inevitable even though the drafters of the proposed rules have
attempted to employ concepts and language already in use in
discovery;

— Because the disclosure system is linked to broadly
worded duties set forth in the proposed rule rather than targeted
inquiry designed specifically for the case by one's opponents,
lawyers and litigants responding to disclosure will be more likely
to evade revealing full information because they will seek a
narrower interpretation of the disclosure requirements than is
possible under the discovery mechanism. Consequently, disclosure
without discovery holds potential for injustice. Most lawyers will
deal with this problem by conducting discovery on top of
disclosure;

- The disclosure ::iechanism creates obvious tensions with
the lawyer's ethical duty to represent a client zealously under our
existing adversary system of justice. If the federal courts are to
modify the adversary model, this should only occur as part of a
comprehensive and integrated reform effort. Amending part of the



358



federal rules to attempt to make fact-gathering less adversarial
will not work well and will create occasional injustices,
particularly if the lawyers and clients have differing or
idiosyncratic notions of their rights and responsibilities.
Although some of this tension already exists under the current
discovery system, mandatory disclosure will exacerbate the problem.
Discovery requires only that lawyers respond fairly to pointed
inquiry. Mandatory disclosure would require lawyers to do some of
the thinking for their opponents.

— Making mandatory disclosure part of the Federal Rules
is particularly unwise at this time. As you know, in 1990 Congress
enacted the Civil Justice Reform Act, which requires each of the 94
federal judicial districts to in effect experiment with discovery
reform as part of the Delay and Expense Reduction Plans that each
district must file by the end of this year. Although many of the
Plans already adopted provide for some variant of disclosure, many
do not. By comparing the experiences of the various districts, the
Judicial Conference and Congress can during the next few years come
to a more reasoned assessment of what works and what does not work
in the continuing effort to improve the speed, efficiency, and
quality of civil litigation.

Although there have been two significant changes in the
disclosure rule since the Association originally commented, they do
not in our view rectify the serious problems of the proposed
disclosure rule. First, the most recent Proposed Amended Rule 26
before your Subcommittee allows district courts to opt out of
disclosure by local rule. Although this helps to alleviate our
concerns about the clash between disclosure and the CJRA, it
nonetheless creates an unacceptable inertia that works to prompt
many federal district courts to accept disclosure even though their
CJRA plans rejected it. Second, the disclosure obligations would
be triggered only when a claim is "pleaded with particularity,"
borrowing the phraseology of current Fed. R. Civ. P. 9(b), which
requires fraud to be pleaded with particularity. Unfortunately, as
evidenced by cases arising under Rule 9(b), one court's
particularity can be another court's vagueness. See Charles Alan
Wright & Arthur Miller, Federal Practice and Procedure §§ 1297,
1298 (Supp. 1992) (citing and describing cases illustrating range of
judicial views as to what constitutes sufficient particularity) .
As a result, some uncertainty and confusion is inevitable.

The Association's main misgivings about the proposed
amended rules concern disclosure. However, we also are concerned
about the proposed presumptive limits on the number of



359



interrogatories and depositions, particularly depositions.
Proposed Amended Rule 30 would establish a presumptive limit of 10
depositions. This proposal would enable parties to hide
information or delay litigation by refusing to produce germane
witnesses so that opponents would exhaust their presumptive quota
of discovery, thus sparking additional, wasteful motion practice.
All of the burden of going to court for relief in such instances
would fall upon the party seeking information, a result we find
troubling. There is no evidence to suggest that overdiscovery is
more prevalent than stonewalling. Both forms of discovery abuse
are blameworthy. However, presumptive limits on discovery, which