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

only produce documents supporting the client's position but also
produce those that may be creatively be used to undercut the
client, the disclosing counsel's insights may indirectly be tapped
by opponents. Although this may not amount to the wholesale
borrowing of the wits of another lawyer, ^^ it could come
uncomfortably close. To require counsel at the outset of
litigation to make judgments that may accrue to the benefit of the
opposition raises serious professional concern. As an alternative
version of Proposed Amended Rule 26(a)(1)(B), the Committee
proposes that any required disclosure mandate only that counsel
produce documents used in support of the allegations of the
pleading filed by the disclosing party.

The Draft Committee Note also seems to narrow the document
disclosure requirement to include only documents, data, and
tangible things "in the possession, custody, or control" of the
disclosing party. The Note or a revised amendment should, however,
also clarify whether the witness disclosure provision applies only
to the disclosing party's witnesses. Must a lawyer acting under
Proposed Amended Rule 26(a) (1) (A) advise other parties of witnesses
favorable to them? If the Advisory Committee reads this disclosure
provision broadly, either the amended Rule or the accompanying Note
should state this with greater clarity. If the Advisory Committee
envisions such a broad disclosure mechanism, it should consider



" See . e.g. . Hickman v. Taylor . 329 U.S. 495
(1947) (Jackson, J., concurring) ("Discovery was hardly intended to
enable a learned profession to perform its functions either without
wits or on wits borrowed from the adversary. ... I can conceive
of no practice more demoralizing to the Bar than to require"
disclosure of trial preparation materials) .



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whether this type of "ultra-disclosure" is fundamentally
inconsistent with the adversary system.

We read Proposed Amended Rule 26(a) as providing that, in the
absence of a written demand for disclosure, a party's motion in
lieu of an answer tolls the time for making disclosure. Where a
party, particularly one whose own disclosure burden is light,
demands early disclosure notwithstanding a pending motion, the
Committee presumes that the movant may seek a stay of disclosure
from the Court. Trial courts must give serious consideration to
a stay of the disclosure requirement during the pendency of motions
made at the outset of litigation ( e.g. . lack of personal or subject
matter jurisdiction; improper or inconvenient venue; failure to
plead fraud with sufficient specificity;" adequacy of class
representative, official immunity; expiration of limitations
period) . We support additional language to this effect in either
a revised draft Rule 26(a) or the Committee Note.

Lawyers are unlikely to use baseless motions as a means of
delaying disclosure. Although some lawyers may use early motions
as a tactic for delaying required disclosure, they do so at peril
of sanctions unless the motion has merit. In addition to
controlling discovery, courts can also often expedite litigation
by focusing on early motions at the initial pretrial conference or
through a standard practice of holding hearings on the motion.
This should provide an early assessment of both the merits of
motions and a more expedient manner for proceeding with the case.
Until the court has addressed threshold motions, required
disclosure will in many cases only tend to increase legal fees.

The Draft Committee Note to Proposed Amended Rule 26 states
that "Interrogatories should no longer be needed to obtain



" Rule 9(b), requiring that fraud be pleaded with
particularity, provides an example of differing local conditions
that might affect the wisdom of adopting the disclosure amendments.
In many regions of the country. Rule 9(b) motions are seldom made
and rarely granted. In New York, the large number of securities
fraud cases has made Rule 9(b) motions more frequent, with the
Second Circuit's generally requiring more of claimants than- have
other courts interpreting Fed. R. Civ. P. 9(b). See , e.g. . Dennv
V. Barber. 576 F.2d 465 (2d Cir. 1978). Consequently, although the
pendency of a Rule 9(b) motion does not automatically stay
discovery and should iiot automatically stay disclosure, a stay will
be appropriate in many cases, especially in jurisdictions such as
the Southern District of New York. Proposed Rule 26(a) should not
effectively repeal Fed. R. Civ. P. 9(b). See also Beck v. Cantor.
Fitzgerald & Co. . 621 F. Supp. 1547, 1552-53 (N.D.Ill. 1985)
(plaintiff should not file expensive, reputation-damaging claim of
fraud without some specific allegations in mere hope that discovery
may "put meat on bare bones of fraud claim").



81-258 0-94-13



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[disclosure] information." Does this mean that a lawyer propounding
an interrogatory about baseline information (perhaps as a check on
the veracity of opposing counsel or parties) has violated the
discovery rules and is vulnerable to sanction (or has one merely
"wasted" an interrogatory)? At a minimum, this should be
clarified. The Committee further suggests that disclosure not be
the exclusive means for obtaining baseline discovery.
Notwithstanding the option of moving for sanctions for
noncompliance with the disclosure, counsel should be permitted to
seek discovery on these issues if this is viewed as tactically
useful (subject, of course, to other limitations on discovery) .

Rule 26raW2^ ^Disclosure of Expert Testimony^

The Committee generally endorses both the purpose underlying
Proposed Amended Rule 26(a)(2) regarding information related to
expert testimony as well as the Proposed Rule's requirements and
the greater availability of depositions of experts. However, we
note some disagreement:

— even where the party procuring an expert has produced the
required disclosure report, the rule should explicitly provide that
other parties should be able to depose the potential trial expert
as a matter of right without being required to seek leave of court.

— in addition, the 30-day period established for providing
disclosure of expert rebuttal information is too short to be
realistic where the expert witness issues are extensive or complex;

— whatever expert discovery or disclosure rules exist should
not be subject to variation by local rule, although individual
judges should retain the power to modify time limits and control
use of experts in particular cases.

Proposed Amended Rule 26fa)n) (Pretrial Disclosures)

Although the Committee has no objection to the disclosure of
witnesses, deposition use, and document use for trial, perhaps, as
we suggested in our comments regarding the March draft; the
disclosure goal would be better achieved through an amendment
requiring a final pretrial order and mandating completion of the
order more than 21 days prior to trial. The process of exchanging
information ar.J collaborating on the final pretrial order would
focus the attention of counsel on both the stakes and merits of the
dispute as well as the impending burden of trial but would do so
sufficiently before trial that settlement resulting from the
process need not occur on the proverbial courthouse steps.
However, where courts do not routinely require a pretrial order or
exempt certain cases from pretrial order requirements, the approach
of Proposed Amended Rule 26(a)(3) is a good one.



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Rule 26(c) rRecmired Conference with the Adversair/)

The Committee endorses the "meet and confer" concept as
presented in Proposed Amended Rule 26(c) since it provides that a
good faith attempt to confer may be sufficient to permit a motion
for a protective order. This change from the March 1991 Draft of
this proposal avoids possible pitfalls of a Rule that required the
conference to take place even in the face of an uncooperative
opponent.

Rule 26 fe) CSupplementationl

If the Advisory Committee promulgates a disclosure mechanism
along the lines of the August Draft, the Committee views the
supplementation language of Proposed Rule 26(e) as apt. However,
a minority of the Committee believes that Proposed Rule 26(e)(1)
may lead to problematic, overbroad interpretation by requiring
supplementation when an earlier disclosure is "not complete," a
relatively open term.

Proposed Deletion of Rule 26(f) Discovery Conference .

To the extent that the Advisory Committee relocates the
requirements of current Rule 26(f) to Rule 16 as also proposed in
the current package of Proposed Amended Rules, it is appropriate
to delete Rule 26(f). However, Proposed Amended Rule 16 does not
sufficiently incorporate what we regard as the useful portions of
current Rule 26(f). The Committee strongly supports early and
mandatory discovery conferences. As indicated in the Committee's
own proposals later in this comment, we believe the early appraisal
by a judicial officer provides the surest and least costly means ,
(in the aggregate) for reducing excessive or abusive discovery
practice. Consequently, the Committee suggests that Proposed Rule
16(c)(6) be expanded to require the court to consider making Rule
26(f) discovery rulings as part of the mandatory Rule 16 initial
pretrial conference. At this juncture, the court should be
directed to consider making an initial decision regarding possible
areas of discovery dispute such as the appropriateness of a
presumptive number of depositions and interrogatory limits.
Admittedly, there may be instances in which it is premature to make
certain discovery rulings in a Rule 16(b) pretrial conference.
Sufficient information may not yet be available. In such
instances, however, the court could make an initial decision,
expressly subject to alteration or amendment at a subsequent pre-
trial conference.



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Rule 30fbl

The Connittee endorses both the approach and text of Proposed
Amended Rule 30(b) (and its companion in Proposed Amended Rule
32(c)) concerning alternative recording of depositions.

Rule 30fc)

The proposed amendment is apparently designed to prevent the
exclusion of witnesses at a trial deposition pursuant to
Fed.R.Evid. 615, which many courts have applied to depositions.
The Committee believes that Evidence Rule 615 should apply to
depositions, at least where the deposition is designed for use at
trial subject, of course, to the exceptions provided in Rule 615
for parties who are natural persons, designated party
representatives, or persons "essential to the presentation of the
party's cause," a term we construe to permit an expert to attend
the opposing expert's trial deposition.

Rules 30 f a) (2) ; 30 (d) ; 33 fPeposition and Interrogatory Limits)

The discovery amendments propose, absent leave of court, a
presumptive limit of 10 depositions, apparently including named
parties and experts." In addition, direct examination of the
deponent is to be limited to a presumptive period of six hours,
reduced from the March Draft's presumptive limit of eight hours.

The Committee, although very concerned about controlling
excessive discovery, opposes fixed presumptive limits on
depositions and interrogatories. The Committee believes such
limits, if appropriate in the individual cas^, should be
established by a judicial officer at the initial Rule 16 pretrial
conference or a Rule 26(f) discovery conference. The Committee
believes that any limitations on amount or duration of discovery,
particularly the time for conducting depositions, are doomed to
failure. A minority of the Committee, however, see limits on
number and duration as a useful benchmark for assisting courts in
establishing an implicit definition of what constitutes "normal"
or "excessive" discovery.^' The Committee as a whole agreed,



" Proposed Rule 30 also requires leave for a second
deposition of a previously deposed witness, a prisoner's
deposition, or a deposition within two weeks of a Rule 12 motion.
The Committee generally endorses these changes.

" The Ccmnittee believes that presumptive limits will prove
either excessive or inadequate depending on the case and merely
increase discovery motion practice and the de facto power of the
district court over case outcomes since few trial court rulings
regarding discovery limits can receive meaningful appellate review.



383



however, that should limits be enacted, the limits proposed are too
low. The Committee is concerned that the 6-hour duration limit is
too short and may pose burdensome restrictions. The entire
Connittee continues to have reser/ations about the 10-deposition
limit and the 15-interrogatory limit as well as the concept of
codified limits in general.

As indicated in the Committee's previous comments, we believe
there should be an exception to the deposition limits for party-
affiliated deponents with significant knowledge of the subject
matter of the dispute. Defense counsel may wish, for example, to
depose six high-ranking executives from the plaintiff corporation.
Although all six are essentially parts of the same corporate
defendant, taking these six depositions would leave counsel with
only four more depositions that could be taken as a matter of
right. Under these circumstances, it would be unwise for the rule
to require defense counsel to expend resources seeking leave of
court to depose these executives should the plaintiff's lawyer be
unwilling to deal in good faith on the issue of deposition
quantity. To avoid such unfortunate but not farfetched scenarios,
the Committee continues to believe that there should be no
presumptive limit on depositions, particulisrly for party employees
or agents who are significantly involved in the dispute under
litigation.

The Committee, with some dissent, opposes limits on the
duration of depositions. First, this portion of the August Draft,
combined with the other limiting proposals, begins to look
uncomfortably like a gigantic local rule. Second, limits tend to
encourage either of two unfortunate judicial responses: (a) the
parties routinely seek and obtain leave of court to conduct
additional discovery, in which case the limits accomplish little;
or (b) the court grants further discovery only rarely, making it
difficult for parties (particularly claimants) to develop a case
(particularly when the opponent has greater access to information) .
Third, number and duration limits substantially shift the factor
of inertia in favor of discovery resisters and against discovery
seekers. Absent a firmer empirical foundation for viewing
excessive discovery as the greater abuse than discovery
obstruction, the Committee sees no reason for such a substantial
shift." The limits of the Proposed Rules hold potential both to



Those endorsing some limits appreciate this danger but believe that
the expense and delay of modern litigation require some effort to
reduce unnecessary discovery and that benchmark limits will serve
to guide counsel and the court in reaching reasonable
accommodations with a minimum of satellite litigation.

" Limited empirical examination to date suggests that
discovery resisters are at least as likely to engage in
unreasonable conduct as are discovery seekers. See . J. Ebersole



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raise transacrion costs for all litigants without corresponding
gain in other aspects of efficiency and to affect
disproportionately different classes of litigants.

The number and duration of limits might well, of course,
motivate counsel to cooperate more closely, negotiating different
arrangements pursuant to Fed. R. Civ. P. 29, but at substantial
cost and uncertainty if the limits are unrealistically low.
Especially during the early years of the Proposed Rules, counsel
resisting discovery would have some incentive to "gamble" and
"wait-and-see"'" whether the local bench will prove one that
routinely grants leave for further discovery or routinely denies
requests for leave. Where either approach obtains in the extreme,
counsel familiar with such local habits will have very little
incentive to negotiate in good faith where they perceive themselves
as favored by the court's approach to the discovery limits.^'

If limits are to be placed on interrogatories, the limit of
15 seems too low. The Draft Committee Note observes that the
proposed limits stem from successful use of interrogatory limits
by local rule. However, all local rules of which the Committee is
aware presumptively permit at least 20 interrogatories, with some
districts setting a presumptive limit of 50 interrogatories.
Although the local rules limiting interrogatories appear to have
worked well and are generally supported by the bar," some counsel



& B. Burke, Discovery Problems in Civil Cases (FJC 1980) .

" See Parklane Hosiery v. Shore. 439 U.S. 322 (1978)
(criticizing tendency of former issue preclusion rules to encourage
litigants to "wait-and-see" before pursuing dispute resolution in
hopes of taking advantage of asymmetric rules of preclusion) .

^* Where the limit is artificially low this will encourage
more motion practice befcre the court (negating some of the
efficiency gams sought through the discovery amendments) ,
resulting in more reported opinions or general knowledge in the
legal community regarding which judges are discovery
"conser/atives" and which are discovery "liberals."

The low limit thus ultimately will improve practitioner
knowledge and remove some of the incentive to negotiate that comes
from uncertainty of outcome. Because so few discovery motions see
appellate review, knowledge of judicial behavior could be quite
localized and idiosyncratic ( e.g. , a single federal ju.Ige for the
rural portion of a state) .

" See J. Shapard & C. Seron, Attorneys' Views of Local
Rules Limiting Tnterrcgatories 11-15 (FJC 1986). This study
surveyed counsel m 12 districts with local rule interrogatory
limits ranging between 20 and 50. Approximately two-thirds of the
respondents found li.-:^its wort.hwnile and stated that they were



385



have argued that the limitations often create additional litigation
expense and disadvantage parties of modest resources, for whom
interrogatories are an effective tool in lieu of more expensive
depositions." It is not at all certain that the bar will support
an interrogatory limit as low as IS."

By invoking the local rules experience to support
interrogatory limitation but proposing a rule limiting
interrogatories to approximately half the limit generally utilized
in local rules (30 interrogatories is a common local rule) , the
Advisory Committee appears to be following a strategy of "if 2 is
good, 1 is better." If the interrogatory limits are codified into
the federal rules, the more appropriate figure is one already used
with success in districts with local rules: we suggest 25 or 30.
Should this figure prove too large, subsequent amendments can
reduce the presumptive limit.

The Advisory Committee Note states that because Rule 26(a) (1)-
(3) requires disclosure of much of the information previously
obtained by interrogatories, there should be less occasion to use
this form of discovery and the limit is therefore justified.
Until, however, empirical data proves disclosure to be an effective



content not to change the rule, with approximately 10 percent of
the respondents advocating elimination of interrogatory limits.
Perhaps significantly, half of the attorneys favoring interrogatory
limits supported this revision when accomplished by local rule but
not when codified in the Federal Rules.

"" Additional expense can occur where parties must
frequently seek leave of court to propound more interrogatories.
Because attorneys in many districts with interrogatory limits
appear to be able frequently to increase their use of
interrogatories through stipulation, this danger can be minimized
through cooperation of counsel. However, such stipulations can
also be interpreted as indicating that the limits of the local
rules are unrealistically low. For example, the Shapard & Seron
study found that a substantial percentage (40 percent) of attorneys
in districts with a 20 interrogatory limit exceeded the limit,
either by stipulation or leave of court, although the sample size
was small and some methodological quirks may account for this
figure. Id. at 19. Regardless of the district's limit,
comparatively few attorneys use more than 30 interrogatories. Id^
at 19.

*' One danger of limits is the tendency of counsel to avoid
clear, tabular format interrogatories with subparts as these will
"count" as more than one interrogatory. Consequently,
interrogatory limits may tend to produce lengthy, harder to
understand questions. Id.



386



and cost-efficient discovery niechanisiii, the 15-interrogatory limit
may be too restrictive.

If restrictions on interrogatories are imposed in the Federal
Rules, the Committee recommends a model more akin to Local Rule of
Civil Procedure 46 of the Southern District of New York, a copy of
which is attached as Appendix B to this submission. Local Rule 46
permits early use of interrogatories but "restricted to those
seeking names of witnesses [with relevant knowledge] and the
existence, custodian, location and general description of relevant
documents, including pertinent insurance agreements and other
physical evidence, or information of a similar nature." Although
this is similar in intent to Proposed Rule 26 regarding disclosure,
the Southern District approach has the virtue of retaining the
existing discovery mechanism without requiring a new procedure.
Local Rule 46 thereafter forbids use of interrogatories during
discovery unless "they are a more practical method of obtaining the
information sought than a request for production or a deposition."
At the close of discovery, Local Rule 46 permits the parties to
serve expert'' and "contention" interrogatories unless otherwise
ordered by the court, placing the burden of seeking judicial
intervention on the parties resisting discovery. The Committee has
found Local Rule 46 both feasible and fair in practice that it has
reduced excessive use of interrogatories and generally lowered
discovery costs."

We believe that the more reasonable restrictions upon the
taking and duration of discovery which we suggest would better
preserve the balance of burdens between those seeking discovery and
those resisting it than do the Proposed Amended Rules. Although
"discovery abuse" has long been a part of the lawyer's lexicon, no
one has demonstrated that discovery abuse is the "fault" of a
particular class of litigants. However, most blame tends to fall
upon claimants, who more often seek discovery as part of their task
for making a case and shouldering the burden of persuasion.



" Expert interrogatories would be unnecessary upon
adaptation of the portions of the November Draft liberalizing
access to expert witness information.

" Local Rule 46 also specifically requires what many
attorneys already know to be required by professionalism: that
objections to a portion of a discovery request do not obviate the
duty to respond to legitimate discovery; that assertions of
privilege require disclosure of basic information supporting the
contentions of privilege; and that production of documents in lieu
of answering an interrogatory not be so haphazard that the
discovering party is forced to organize the materials. See Local
Rule 46(d) -(f). The Committee has also found these requirements
to be useful.



387



Although this generalization is perhaps accurate ( i.e. . claimants
want more discovery) it does not logically follow that claimants
are the source of discovery abuse. Abuse can also involve the
wrongful withholding of information. Whether described as a
"fishing expedition" or "stonewalling," the Committee regards
discovery abuse as a two-way street. We caution care in shifting
the economic, logistical, and tactical burden of going to court too
greatly through the Proposed Rules. With such relatively low
limits on depositions and interrogatories, the Proposed Amended
Rules place too much of the burden of discovery reform on the
discoverers and not enough upon the resisters.

Regarding local variation, the Committee agrees with the
provisions of Proposed Rule 26(b)(2) permitting local rules to
alter presumptive limits on the number and length of depositions
and number of interrogatories "for particular types or
classifications of cases" but believes the local "opt out"
provision should be altered to provide that a district court can
not set lower limits than those stated in any amended rules and to
permit district courts to increase presumptive limits in all cases,