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

not merely particular classes of cases. Despite this Committee's
general resistance to significant geographic variation in civil
practice, it believes that greater local discretion to expand
presumptive discovery worthwhile, largely because the Committee
sees excessive contraction of discovery rights as a greater danger
than excessive local variation in discovery practice.

An Alternative Potential Avenue of Discovery Reform . In lieu
of changes in the discovery rules or mechanism, the Committee
recommends institutionalization of a more active judicial role in
supervising discovery disputes. This is particularly consistent
with the Civil Justice Reform Act, which recognizes that effective
delay and cost reduction requires "early involvement of a judicial
officer in planning the progress of a case, controlling the
discovery process, and scheduling" the litigation (136 Cong. Rec.
S17904 (daily ed. Oct. 27, 1990). More active early judicial
involvement offers a more pragmatic solution to the discovery
dilemma. The Rule 16(b) conference already provides a vehicle for
judicial supervision. The Proposed Amended Rule 16 would add
greater authority to the court in this regard."



" The notion of early and substantial judicial involvement
as the best means of curbing litigatio.i excuses is nothing new.
The major FJC study published in 1978 found this to be the most
effective means of controlling discovery without detracting from
any of the substantive rights of the parties. See Connolly, supra
note 25, at 77-84. In addition, this study proposed that all
discovery be held to a presumptive deadline of no more than six
months. The Committee endorses this approach.



388



The Committee endorses strengthening this mechanism. Instead
of the disclosure provisions, "regular" party-initiated discovery
should be available for litigants to pursue baseline information.
At the initial pretrial conference, the judge or magistrate
presiding at the conference would obtain more information from the
parties and set forth a more detailed discovery plan (as well as
ruling on any discovery disputes resulting to date) . This more
detailed pretrial discovery conference could perhaps adjudicate
issues of privilege and relevance likely to arise during discovery
(and already foreshadowed by initial discovery efforts) . In
addition, the Advisory Committee should consider mandating that
counsel meet prior to the first pretrial conference and attempt to
agree upon discovery matters. Local Rule 6 of the Central District
of California (attached as Appendix C) requires such a mandatory
attorneys conference as well as a resulting status report to the
court. Although the bar was predictably concerned when this rule
was initiated, it appears to have worked well and been accepted by
the local bar.

Under the Committee's proposed approach, each case would in
effect, get a custom-made discovery limit from a judicial officer,
who would make an early assessment of the relative need for
discovery based on counsel's showing derived from baseline
discovery. This would undoubtedly require more pretrial judicial
assessment of the case and, as a practical matter, would probably
require an expanded corps of magistrate judges or Article I
"discovery masters". Although this entails some cost, protracted
discovery administered largely by counsel can be far more costly.
By the same token, undue restriction of discovery that harms
certain litigants or claims carries costs of its own. As discussed
above, overly stringent presumptive limits on discovery may both
discriminate against certain litigants and raise litigation costs
through the increase of satellite motion practice. The Committee
thus proposes early party-controlled baseline discovery followed
by a more searching evaluation of the discovery needs of the case
at the initial pretrial conference.



Rule 43

The Committee strongly opposes Proposed Amended Rule 43, which
provides for judicial discretion to require that direct witness
testimony be introduced by affidavit or deposition but that these
written submissions be "[s]ubject to the right of cross-
examination". This provision is both extremely unwise and most
unlikely to lead to any discernible benefit that could possibly
offset its obvious disadvantages. No amount of tinkering can
rehabilitate this flawed proposal. It should be withdrawn
immediately.

The Anglo-.\r,erican legal tradition has historically placed
important emphasis on live courtroom proceedings for obvious



389



reasons. Although it may take longer than a well-crafted written
presentation, the give-and-take of live testinony, with objections,
colloquy, interruptions from the bench, cross and re-direct all
provide both inforaation in the abstract and, more imporrant,
information in context for the court. Most important, the
testimony comes from the witness rather than the lawyer who drafted
the affidavit or witness statement. These advantages of taking
evidence "in living color" rather than in writing more than
outweigh the additional time required for traditional trials.
Although "demeanor" evidence can be overrated, it should not be
eliminated altogether. Demeanor evidence provides an important
component of the whole picture of a dispute.

The Committee concurs in and echoes the comments of Frank et
al. regarding Proposed Amended Rule 43. If written direct
testimony is required in bench trials, there is little logical
stopping point to prevent future attempts at written cross-
examination, or written testimony in jury trials. The logical
point of demarcation is the trial process itself. Trial witnesses
should be oral witnesses unless the parties agree to the
introduction of written testimony. Judges should not be empowered
to "streamline" the trial against the wishes of the litigants and
advocates in the face of centuries of historical vindication of
oral trial proceedings.

Rules 54 and 53

Although we agree with some of the proposed revisions of Rules
54 and 58, we feel that the changes do not go far enough and should
be adjusted in order to promote judicial economy and ease the
proposed time burden being placed on practitioners.

Given the predisposition of most courts and commentators to
have appeals courts resolve the issues regarding requests for
attorneys' fees in conjunction with all the other issues being
appealed in the case. Rule 54 should be changed to require that a
motion for attorneys' fees renders an otherwise final judgment
nonappealable until the district court disposes of the attorneys'
fees motion, unless (i) the district court enters a separate
judgment under Rule 54(b), (ii) certification under 28 U.S.C.§
1292(b) is obtained or (iii) appellate review is obtained via
mandamus .

Implementing this change would not only promote judicial
economy but would also eliminate doubt about when a notice of
appeal must be filed if the issue of attorneys' fees is lurking.
A notice of appeal would then be effective unless a fees motion is
filed. In addition, the Committee's proposal is consistent with
Proposed Amended Fed. R. App. P. 4(a)(4), which would also treat
motions for counsel fees as vitiating the notice of appeal and in
essence place the appeal on hold.



390



The Conmittee's proposed change would also eliminate the
purpose behind the Advisory Committee's 14-day provision in Rule
54(d)(2)(B). The Draft Committee Note suggests that the purpose
of the short time limit is to ensure that opposing parties are
informed of the attorneys' fees claim before the time for appeal
has elapsed." This objective is automatically met if a pending
application for fees prevents final judgment and piecemeal review.

A time limit for filing the motion for attorneys' fees would
still be necessary in order to avoid long delays in the appeals
process, as all appeal issues in the case would be awaiting the
district court's resolution of the attorneys' fees motion.
However, because, as a practical matter, billing data, generally
in the form of computer printouts, are often not available so soon
after entry of judgment, and in a complex case might not be able
to be redacted to eliminate privileged material and/or analyzed
satisfactorily within 14 days, we believe that the filing deadline
for fees motions should be set at 21 days after entry of judgment.

At the very least, if the 14-day limit is retained, the text
of the revised Rule 54(d)(2)(B) should be changed to add the
language of the Draft Committee Note" that the party moving for
attorneys' fees need not support the motion with print-outs or
other evidentiary material at the tine of the filing of the notion ,
but must be prepared to provide such support according to whatever
schedule the district court may set in light of the circumstances
of the case. Without such additional language in the text of the
rule, we conclude that practitioners will be unfairly forced to
make unduly rushed decisions regarding supporting papers for fees
motions.

In addition, the Committee is concerned about the growing
practice of routinely assigning special masters to decide fee
applications. Unless hard-pressed to render timely considered fee
decisions, courts should generally attempt to decide fee petitions
with full-time judicial personnel. The Committee generally
endorses fee schedules by local rule, provided that the court
obtains the views of a wide spectrum of the practicing bar prior
to formulating such fee schedules. In addition, the Advisory
Committee may need to consider specific language authorizing
interim fee awards in civil rights cases or other appropriate
situations.



Rule 56



*i



938 F.2d at CCXXXV.
938 F.2d at CCXXXVI ,



391



Overall, the proposed revised Rule 56 is long, cumbersome and
unnecessarily burdensome in its requirements for both bencn and
bar." The present rule, along with the cases establishing the
standards for evaluating summary judgment notions and local rules
specifying various procedural requirements,'" affords enougn
protection for litigants and enough direction for the courts. By
trying to incorporate into the proposed rule some of the standards
articulated in the governing case law, the Advisory Committee has
conspicuously omitted other governing standards and leaves counsel
wondering whether the proposed rule represents "one-stop shopping"
on summary judgment standards."



*' Not surprisingly, we are not the only lawyers with this
reaction. See , e.g. . Frank et al., supra note 5, at 16 (noting
that Proposed Amended Rule 56 is more than 50 percent longer than
current Rule 56 and creates "endless possibilities of further
litigation, and to no apparent good end") .

** See , e.g. . N.Y. Southern and Eastern District Court Civil
Rule 3 (g) , covering the issues addressed in proposed revised Rule
56(c) (1) and (2) .

*' For example, while the Advisory Committee Notes acknowledge
the influence of Celotex Corp. v. Catrett . 477 U.S. 317 (1986), and
Anderson v. Liberty Lobbv, Inc. . 477 U.S. 242 (1986), no mention
is made of Matsushita Electric Industrial Co. . Ltd. v. Zenith Radio
Corp. . 475 U.S. 574 (1986), which stated that, even if certain
genuine issues of material fact are outstanding, summary judgment
may nevertheless be appropriate if the factual context renders the
opposing party's claim "implausible."

We do not suggest that language reflecting the holding of this
case be incorporated into any revised Rule 56. On the contrary,
we have strong reservations about automatically codifying language
from the controversial Matsushita and Liberty Lobbv decisions.
Rather, we view it as misleading to incorporate the holdings of
certain Supreme Court cases without considering the entire body of
summary judgment case law. Under the circumstances, we believe it
would be best to leave the rule as it is and let counsel
familiarize themselves with all appropriate cases on summary
judgment.

For example. Liberty Lobby 's decision to incorporate the
substantive burden of proof into summary judgment analysis may, as
then-Judge Scalia noted in the D.C. Circuit's panel opinion in the
case, put judges inappropriately in the role of weighing evidence
in jury cases. However, it appears that courts have not vigorously
applied this aspect of Liberty Lobby , probably because deciding
summary judgment motions "filtered through the prism of the
substantive burden of proof at trial" is unworkable in many cases.
In addition, it has a certain standardless "I know it when I see
it" quality of adjudication by instinctive reaction. Certain
unfortunate language in Liberty Lobby can also be read as intruding



392



This is net to say that Rule 55 could not be iraproved in any
way. Portions of the proposed revised rule seem reasonable, such
as affording opposing parties 30 days to respond to a motion. But,
where needed, t.he same effect is generally achieved through
counsel's extending their adversaries' time to respond; and
sometimes, in simple, straightforward cases, 30 days may be too
much time.

The proposed revised rule also appears to favor unduly those
litigants who might wish to delay summary judgment with
unproductive and wasteful discovery. In the proposed revision of
subdivision (c) , the parties opposing a motion for summary judgment
must be "afforded a reasonable opportunity to discover relevant
evidence pertinent [to the motion] that is not in their possession
or under their control." This clause is likely to serve as a
costly and obstructive lifeline — however temporary — to delay the
inevitable judgment against litigants who have no legitimate basis
for opposing summary judgment. Current Rule 56 affords an
opportunity for discovery if the court sees fit, but it does not
do so in the manner presented by the proposed revision of
subdivision (c) — presumptively requiring the opportunity for such
discovery. There are numerous uncomplicated cases with respect to
which summary judgment is an appropriate mechanism to dispose of
the case quickly and efficiently. To place an artificial roadblock
in the path of such an other-^ise efficient mechanism will only
further tax an already overburdened federal judiciary.

While Rule 11 protections still exist to counter certain
frivolous defensive measures. Proposed Amended Rule 56 has removed
the threat of monetary sanctions currently found in subdivision (g)
of Rule 56 when affidavits are submitted in bad faith or solely for
delay. Although the Draft Committee Note maintains'" that the
protections of current Rule 56(g) are contained in Proposed Amended
Rule 11, the final shape of Rule 11 remains uncertain in view of
the controversy surrounding the Rule. Although we generally
endorse consolidation of sanctions rules, final deletion of other
sanctions rules should occur only after Rule 11 revisions or the
institution of an omnibus rule are finalized.



on the traditional role of the jury. In our view, courts should
resist these potential problems by exercising restraint in the
application of Liberty Lobby and Matsushita and have done so
informally and admirably in the five years following the Court's
1985 trilogy. A revamped summary judgment rule may well disturb
the judicial balance that currently appears to prevail regarding
summary judgment.

" 933 F. 2d at CCXLVIII.



393



Consistent with its May 1991 Comments regarding proposed
changes in federal discovery practice, the Committee remains
puzzled regarding the attitude toward experimentation apparently
prevailing in the Advisory and Rules Committees. Ordinarily, when
one enters a period of experimentation, one retains a control group
(a body unchanged from the status quo) and an experimental group or
groups (bodies different than the status quo) . After an adequate
time, the control group and the experimental group are compared,
allowing the researcher to determine what impact, if any, was had
by the experimental group's differences from the status quo.

The Civil Justice Reform Act of 1990" embodies the essence
of the experimental method in that it requires each federal
judicial district to convene advisory groups to suggest means by
which the court may reduce delay and cost of litigation. These
groups are already in place throughout the country. Both the
Southern District and Eastern District of New York have already
promulgated extensive advisory group reports and are expected to
adopt a number of substantial changes in civil practice by local
rule. For example, the Eastern District appears likely to adopt in
most respects the disclosure procedures contained in the Proposed
Amended Civil Rules. By 1995, these and other district plans will
have been implemented and reported upon to the Judicial Conference
of the United States. At that juncture, courts can more precisely
gauge the potential effectiveness of proposed amendments such as
the disclosure system, limitations on depositions and
interrogatories, expanded pretrial conferences and the like. For
that reason, the Committee has strongly opposed major amendments to
the discovery rules at this time.

Proposed Amended Rule 8 3 continues to suggest that the
Advisory Committee has turned the scientific method on its head.
Rather than maintain some semblance of the status quo as a control
group, the far-reaching August 1991 package of proposed amendments
drastically changes much of the civil rules, in effect making the
nation's federal courts an experimental group. Proposed Amended
Rule 83 would permit, contingent upon Judicial Conference approval,
district courts to adopt experimental local rules inconsistent with
the overall rules and Title 28 for a period of up to five years.
In effect, new Rule 83 would allow some districts to become
different experimental groups or revert to the former civil rules.
Of course, predicting any of this is impossible because the
Judicial Conference has published no substantive criteria by which
it will decide the applications of the district courts.

The Committee is at a loss to understand the rationale
underlying both the sudden and widespread revision of the discovery
rules combined with the strange reverse experimentalism embodied in
Proposed Amended Rule 83(b). If the Judicial Conference favors



5' 28 U.S.C. §471 (1990)



394



The Committee is at a loss to understand the rationale
underlying both the sudden and widespread revision of the discovery
rules combined with the strange reverse experimentalism embodied
in Proposed Amended Rule 83(b). If the Judicial Conference favors
experimentation, as does Congress by virtue of its passage of the
Civil Justice Reform Act, it would seem wiser to retain the status
quo and to permit districts to experiment (pursuant to the
directives of the Act) without the need for Judicial Conference
approval so long as any resulting local rules are not so
inconsistent with the federal rules as to undermine a party's
rights. Under the Proposed Amended Rules, there will be no
organized experiment that can be studied — the Proposals effectively
wipe out the control group and replace it with a nationwide
experimental group. If these Proposals take effect, the Civil
Justice Reform Act will have been effectively overruled." However,
subject to the unarticulated discretion of the Judicial Conference,
there remains the possibility of sporadic experimentation or a
return to the status quo.

This arrangement appears to be a prescription for confusion
with no likelihood of providing the profession with meaningful
information as to the impact of various rules. Instead of making
such broad revisions in the civil rules and so expanding Rule 83,
we recommend restraint in rulemaking and oppose Proposed Rule 83(b)
in any form.

The Committee endorses Proposed Amended Rule 83 (d) .
Widespread and surprising variance in the ever-expanding local
rules is a problem that can occasionally plague even the most
careful counsel. We also suggests that the draft Rule 83(d)
language be revised to state specifically that it applies to
standing orders and unwritten customary procedures of the district
courts.



Evidence Rule 702

Subject to its concerns regarding the proposed revisions in
discovery practice and the premature institution of the disclosure



" However, because of the inherent delays in rulemaking, the
August 1991 Proposed Amended Rules could probably not take effect
until December 1, 1993 at the earliest. Thus, the experimentation
sought by Congress in 22 U.S.C. §471 could be realized for at least
some short period of time. In addition, the August 1991 proposals
can not become law without the acquiescence of Congress.
Notwithstanding that, it seems counter to the 1990 Act for the
Rules and Advisory Committee to move so swiftly toward a major
revision of Rules, particularly the discovery rules, before the
submission of the district studies required by the 1990 Act.



395



system, the Committee supports Proposed Amended Rule of Evidence
702.

The Committee and the Association of the Bar appreciate the
opportunity to submit comments regarding these imported proposed
revisions to the civil rules. We would be happy to provide
additional explanation, commentary, or research should the Rules
Committee or Advisory Committee desire.

Respectfully,



Jeffrey A. Mishkin, Chair
Committee on Federal Courts
Association of the Bar of the
City of New YorJc

Martiss V. Anderson
Celia Goldwag Barenholtz
Edwin Mark Baum
David M. Brodsky
Richard B. Brualdi
Jay C. Carlisle II
Michael A. Cooper
Jo Ann Davis
Philip Le Breton Douglas
Carol A. Edmead
William Scott Ellis
Lawrence D. Gerzog
R. Peyton Gibson
Martin Glenn
Mark R. Hellerer
Jonathan M. Herman
Berthold M. Hoeniger
T. Barry Kingham
Jonathan J. Lerner
Robert Lewin
Marian Whitney Payson
Jed Saul Rakoff
Seth Ribner
Cheryl R. Saban
Jeffrey W. Stempel
Stephen E. Tisman
Richard M. Zuc> crman



cc: Hon. Sam Pointer

Prof. Paul Carrington



396



APPENDIX A. —COMMITTEE ON FEDERAL COURTS
RI.L£ n

[Drrili]

Rule 11. Abusive Conduct of Litigation-'

(ai Derinitiom

1 1 ] â– "Conduc:." as used in this Rule, refers to anv acdvitv bv
counsel, a parrv. a witness, or anvone else attempting to
influence lidg^tion mat affects the proceedings of a case
properlv before the court. Conduct includes but is not limited
to the commencement of an action, informal invesdgation or
the absence of it surrounding the prosecuuon or defense of an
action, the use of a pleading, motion, or other paper, settlement
discussions, discover." practice, motion pracuce. dealings among
parties, counsel, and witnesses, as well as behavior surrounding
the trial of a matter.

(2) "Abusive" conduct^' is conduc: undertaken or omitted.
including both intentional acts and omissions, as well as reckless
or grossly negligent behavior. Examples of abusive conduct
include seeking unreasonable delav in the conduct and resolu-
tion of the matter, harassment of others, attempung to inflict
malicious injur - to others, a grossly negligent or reckless failure
to conduct a reasonable inquiry into the facts or applicable law
of a matter, or engaging in anv other behavior that falls
demonstrably short of that expected from a reasonable attor-



54 Owing to time constnints, the Commutes wai not able to drat"t an advisorv
note to accompanv iti prooojed comprehensive sanctions rule. .\n accompanving
note would obviousiv ace much to the new rule by permitiing the .\dvjsorv-
Committee to ^ve rJidance to the profession as to the Rule i application without
making the text ot the rjie undulv long and unwieldv. Ob\nousiv. a well-crafted
note would alleviate the pressure which this Committee felt to make ita draft
comprehensive ruie verv jpecific.

« Althou'.^h a Note vouid ^enerallv aid drafting and use of the entire
corr.orehensivc sanctions rule, it would have particular value for this subsection.
Denning atjusive >;cncuc: :s an elusive goal. Through illustrations, examples and
narrative, the note can more fullv communicate the intent of the new rule.

This legment of ;.-.e Rule seeks to establish a broad standard that judges would
.Toplv with sensitive iiicrstton :o sanction obvious voiiiionai abuses and attomev
behavior that, although not intentionailv abusive, is so grosslv or recklesslv below
acceptable itandardi ot attornev behavior as to amount to an aouse ot the litigauon
process.

The .N'ote would itress that the new rtile is designed to focus on the conduct of
counsel rather than ;.-.e prcauct of counsel. T"ic coun would be counseled to resist
in\- tendencv to sanction counsel merelv because the court was displeased with