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

Justice Scalia accurately observed that the combination of elements in the new
rule should reduce the number of Rule 11 motions presented to the court. Indeed,
this is one of the principal aims of the revision, and we believe the FJC studies
amply support our conclusion that there has been an excessive and unproductive
amount of Rule 11 activity. To be sure, the "safe harbor" will reduce the risks to
a litigant for initially including a Questionable claim or defense. On the other hand,
amended Rule 11 will continue to aeter — and, in fact, more effectively and equitably
deter-the — pursuit of frivolous litigation, claims, and defenses. The "safe harbor"
provisions, coupled with the proscription against the continued assertion of conten-
tions that can no longer be justified, should actually result in more frequent aban- ^
donments and withdrawals of frivolous contentions than the prior rule. It should be
noted that the "safe harbor" applies only to party-initiated motions; these provisions
will not prevent court-initiated sanctions, wnich would be appropriately invoked by
the more egregious violations that burden or offend the court.

Whether imposition of sanctions should be discretionary or mandatory is a ques-
tion that has troubled and divided both the Advisory Committee and the Standing
Committee.^ Those favoring mandatory sanctions generally express the concern
that, if discretionary, sanctions will be imposed less frequently due to judges' natu-
ral reluctance to punish those who appear before them. Those favoring discretionary
sanctions note that the mandate is largely illusory since the judge has wide discre-
tion in selecting what sanction to impose, and that, indeed, explicit discretion to de-
cline imposition of sanctions is needed in order to deal with the problem of Rule
11 motions that raise technical, insignificant violations. Influenced greatly bv the
disruption often caused by Rule 11 motions, the Standing Committee concluded
that, on balance, a discretionary standard was preferable, and this is the form of
the rule approved by the Judicial Conference and adopted by the Supreme Court.

The Scalia dissent correctly notes that the restrictions on monetary sanctions pay-
able directly to movants will decrease the incentive for parties to file Rule 11 mo-
tions. This represents a conscious choice by the drafters. Too often. Rule 11 motions
have been filed in an effort to circumvent the standards for statutory awards of at-
torney's fees to prevailing parties or to shortcut the procedures that would apply in
traditional malicious prosecution actions. We believe that the principal purpose of
Rule 11 should be to deter improper representations to the court which offend the
integrity of the judicial process, and that parties should not be encouraged to file
Rule 11 motions to obtain some personal benefit. At the same time, however, the
amended rule does not discourage parties from preparing Rule 11 motions; service
of meritorious Rule 11 motions should result in withdrawal or abandonment of frivo-



' As mentioned in the Scalia dissent, the language of Rule 37, unlike that of Rule 11, contin-
ues to treat sanctions for discovery abuses as mandatory. This difference can perhaps best be
explained by noting that the mandatory language of Rule 37, which long predated the 1983 revi-
sion of Rule 11, produced very few complaints. This in turn may be due to the fact that mone-
tary awards under Rule 37 have typically been limited to expenses resulting from some particu-
lar discovery abuse, and not the shifting of the entire cost of litigation to another party.



18

lous claims or defenses, and, if court action is needed to accomplish that result, the
fees incurred in presenting the motion may be reimbursed.

The most vigorous opposition to the proposals to amend Rule 11 came, however,
not from those concerned about possible weakening of the rule, but from those who
believed the changes did not go far enough — that Rule 11 should have been either
abrogated altogether or restored to a form comparable to the pre-1983 language. We
are convinced, however, that, despite its deficiencies and problems, Rule 11, as
amended in 1983, has served a prophylactic purpose in calling on litigants to "stop
and think" before asserting unsupportable contentions. According to the FJC survey,
the great majority of district judges believe that Rule 11 — perhaps more as a result
of its in terror em effect rather than in the actual imposition of sanctions — ^has been
a valuable tool, albeit less effective than some of the other management techniques
available to the courts. The Advisory Committee believes that, with appropriate
changes, Rule 11 can and will continue to serve an useful role in combating litiga-
tion abuses.

The plaintiiTs' civil rights bar was especially vocal in asserting that the 1983 ver-
sion of Rule 11 had been used by defense counsel and some courts to "chill" the de-
velopment of potentially meritorious, yet untested and novel, claims. We believe
their concerns have been adequately addressed and remedied in the amended rule,
which includes some changes made by the Advisory Committee and Standing Com-
mittee after publication oT the original proposal. In addition to the protection af-
forded by the "safe harbor" provisions, Rule 11(b) places plaintiffs and defendants
on a more equitable footing with respect to their obligations, and Rule ll(cX2), re-
lating to the type of sanction to be imposed, should avoid the unduly punitive sanc-
tions occasionally imposed. Of particular note is the recognition in Rule ll(bK3) that
sometimes a plaintift will have a legitimate basis for believing that some claim can
be pursued but will need discovery from a defendant or third-parties to obtain fac-
tual support for that claim.

One additional matter may draw comment — the so-called "pleading as a whole"
concept. Some may argue that a sanction should be imposed only if the pleading,
taken as a whole, violates the certification requirements. The Advisory Committee
was convinced, however, that the mere fact that some contentions in a complaint,
answer, or brief have arguable merit should not absolutely excuse the inclusion and
active pursuit of other contentions that were made for improper purposes, without
any evidentiary support (existing or potentially obtainable through discovery), or
without colorable legal merit. At the same time, the Committee agrees that parsing
a document for every statement possibly subject to challenge under Rule 11 should
not be encouraged. The proper balance, we believe, is achieved through the "safe
harbor," the adoption of a discretionary standard, and the elimination of the incen-
tive for personal gain. Moreover, in the Committee Note we have included an admo-
nition that Rule 11 motions should not be used for minor, inconsequential violations
and that, in deciding what sanction — if any — to impose, the court should consider
whether the violation infects an entire pleading or only one count or defense.

III. DISCOVERY AND DISCLOSURE: RULES 26-37 AND FORM 35

At the same time the Brookings Institute was reviewing the causes and potential
remedies for unnecessary expense and delays in litigation — a study that would ulti-
mately provide the impetus for enactment of the Civil Justice Reform Act of 1990 —
the Advisory Committee was also exploring what changes might be made in the
rules to reduce these expenses and delays. Legislation proceeded more rapidly than
did consideration within the judicial branch, in part due to the lengthy time require-
ments imposed under the Rules Enabling Act.

The changes in Rules 26 through 37 represent the considered judgment of the Ad-
visory Committee on Civil Rules and the Standing Committee as to what amend-
ments should now be made — with the specific objective that these changes com-
plement and enhance the process of further exploration and experimentation man-
dated by the CJRA. These amendments were reviewed and approved by the Judicial
Conference of the United States and then adopted by the Supreme Court. The delib-
erative process has been lengthy and time-consuming. Extensive oral and written
comments from members of the bench, bar, and public were carefully considered,
and in numerous instances resulted in changes to the proposals initially published.

Two fundamental propositions have guided the development of these amend-
ments:

Attorneys, under active supervision from district and magistrate judges,
must become more restrained, selective, and efficient in conducting discov-
ery. Unrestricted discovery too often results in unnecessary expense and



19

delay. Many of the typical discovery disputes can be eliminated. Much of
the information currently gained through the process of formal discovery re-
quests, objections, and responses could be obtained more efTiciently by less
formal means without sacrifice to our adversarial system.

In due course as the CJRA contemplates, local experimentation and vari-
ation should be replaced by a return to uniform procedural rules. Mean-
while, the national rules must not interfere with, but rather should com-
plement and enhance, these local experiments and variants.

The key features of the amended rules are outlined below. These are intended to
apply only in cases that may involve evidentiary trials and require some discovery,
and not, for example, in social security reviews, bankruptcy appeals, and similar
cases typically decided on a written record.

(1) Early in the case, the attorneys must meet in person to explore and clarify
the issues, discuss the discovery needs and attempt to agree on a proposed discovery
plan, and submit a report of their proposals to the court for use in formulating a
scheduling order. This should ordinarily occur before they commence formal discov-
ery — in essence, an obligation to "stop and think" before rushing into discovery.
Some cases, such as prisoner pro se litigation, would be excluded from this require-
ment.

(2) Limits should be imposed on the number of interrogatories and depositions in
the case. The rules set a presumptive limit of 25 interrogatories and 10 depositions-
per-side, but these may be changed by local rule, court order, or stipulation. Option-
ally, the court may also place limits on the length of depositions.

(3) Core information about a case — basically, the identification of potential wit-
nesses and a general description of potential documentary evidence — should ordi-
narily be exchanged without going through the wasteful process of cross interrog-
atories, objections, and responses. This core information, disclosed early in the liti-
gation, would be used as a basis for making better decisions regarding who should
be deposed and what document requests should be made. Details concerning what
information, in what cases, when — and, indeed, whether — this disclosure should be
made are subject to modification by local rule, order in the particular case, or the
parties' stipulation.

(4) Times should be set for the parties to disclose — without need for interrog-
atories — information about expert testimony they expect to offer in the case. For
specially retained experts, this disclosure should ordinarily be in the form of a writ-
ten report detailing the testimony to be given on direct examination, with an obliga-
tion to update this report in advance of trial if there are any material changes. After
receiving an expert's report, a party may depose the expert without having to obtain
special permission from the court.

(5) The time spent by litigants and judges on discovery disputes will be reduced
through a series of changes, such as: (i) requiring responses to interrogatories and
document requests to the extent not objectionable; (ii) restricting "speaking objec-
tions" and directions not to answer during depositions; (iii) providing the parties
with expanded opportunities to vary discovery procedures without having to obtain
court approval; and (iv) requiring that the parties try to resolve discovery disputes
before presenting them to the court.

(6) Shortly before trial, the parties should list the witnesses to be called and the
exhibits to be offered (other than purely for impeachment purposes). Objections to
exhibits (other than under Rule 402 or 403) should be raised before trial or be
waived.

(7) Virtually all of the amendments expressly permit modification by the district
court through local rule or case order or, unless restricted by the court, by stipula-
tion of the parties. These provisions are intended to make accommodation for local
variants adopted by courts under their CJRA plans, and, in general, to highlight
that the best discovery plans are those tailored to the particular circumstances of
a given case. Even with highly-structured differential tracking plans, consideration
should be given to any special needs of the case.

It is the third of these items — often referred to as "automatic mandatory early dis-
closure" — which has generated most of the controversy. I will focus my comrnents
on this item, and particularly on the objections thus far made to the Subcommittee,
except as you want me to address other aspects of the amendments.

The objection that early disclosure requirements will be counterproductive, resulting
in increased costs by adding another layer of discovery disputes

This concern — stressed in the Supreme Court dissent, in which Justice Souter also
joined — is a legitimate and potentially meritorious objection. The Advisory Commit-



20

tee would have to acknowledge that many — perhaps most — of those drawn into the
debate by the principal critics are, in good faith, genuinely concerned that the dis-
closure obligations will breed a new arena for unproductive pretrial disputes- and,
quite candidly, we cannot say with certainty that their fears are unfounded. We be-
lieve, however, that their apprehensions will prove to be greatly exaggerated and
that experience will demonstrate that mandatory early disclosure of core informa-
tion reduces the time and expense of discovery. While some disputes will doubtless
arise concerning the disclosure requirements, particularly during the period when
litigants and courts are adapting to the new rules, this burden should be more than
offset by a reduction in the disputes arising from early interrogatories and subse-
quent discovery requests.

Critics approach the new rule by asking this question: can the disclosure require-
ments be used by a litigant, if permitted to do so by the court, to distort and frus-
trate the goal of reduced expenses and delay in the discovery process? My question
is whether, under guidance by judges, attorneys can and will conform and adapt
their traditional practices in a manner that will achieve the worthwhile objectives
of the new procedure.

I am personally convinced that the critics are underestimating the ability of law-
yers and judges to bring about these changes without generating a new round of
disputes."* I am not alone in this view, as evidenced by the fact that 23 of the 41
CJKA plans adopted as of June 1, 1993, include some variant of an early disclosure
requirement, and many other courts are in the process of including such provisions
in their plans. As the Subcommittee knows, these plans are developed on a local
basis by members of the bench, bar, and public to reduce the expense and delays
in civil litigation. While only anecdotal evidence, my conversations with judges and
lawyers in districts that have already implemented disclosure obligations indicate
that few disputes requiring court intervention have occurred in complying with
those obligations.

A major area of debate relates to the timing and scope of early disclosures. Many
have urged — and some district courts have provided in their CJKA plans — that par-
ties should be required to disclose only those witnesses and description of documents
which would be used to support their positions in the case and that these disclo-
sures should be made sequentially, first by the plaintiff and then by the defendants.
Some plans, using language contained in the initial published draft, of the proposed
change, call for disclosure of witnesses and document descriptions that bear signifi-
cantly on the issues in the case. Some plans call for actual production of documents,
rather than merely a description.

Based upon the numerous comments, the Advisory Committee concluded that the
best balance — between the information likely to be needed and the potential for dis-
putes — was to call for essentially simultaneous exchange of the core information (at
or following the in-person meeting of counsel) and to use traditional concepts of rel-
evancy in defining tne scope of iniormation to be disclosed.

One refinement, prompted largely by defendants concerned about vague allega-
tions sometimes contained in notice pleading, was to link the presumptive scope of
disclosure obligations to the disputed facts identified with particularity in the plead-
ings. Also, the rule, as ultimately submitted to and adopted by the Supreme Court,
requires an early meeting of counsel to discuss and clarify the issues in the case,
with the expectation this discussion should eliminate most of the controversies that
might otherwise arise concerning the scope of disclosures.

There is no one right answer at the present time regarding how the initial disclo-
sure requirements should be worded. For this reason — as well as to facilitate the
mandates of the CJRA in calling for local experimentation— Rule 26(a)(1) expressly
permits local courts to vary from the national standards for initial disclosure, or in-
deed even to "opt out" of any such requirement altogether during the present period
of experimentation. Under the Civil Justice Reform Act, the Advisory Conrmiittee
will have an obligation to review the experience of courts operating with different
versions of disclosure requirements.

The objection that early disclosure, coupled with the provisions for sanctions and a
duty to supplement, will result in unnecessary disclosure

Some argue that the potential sanctions for insufficient disclosures are too severe
and may lead responsible litigants to "over-disclose." Much of this criticism results



"The Committee Notes (at p. 228) stress that "the disclosure requirementfi should, in short,
be applied with common sense and in the light of the principles of Rule 1, keeping in mind the
salutary purposes that the rule is intended to accomplish. The litigants should not indulge in
gamesmanship with respect to the disclosure obligations."



21

from a failure to read the rules and Notes, or to recognize the changes made from
the initial published draft.

The initial disclosure under Rule 26(aKl) — whatever the scope of information
specified in the national rule or a local rule or plan — is to be "based on the informa-
tion then reasonably available to it;" and the signature on the disclosure constitutes
under Rule 26(gXl) a representation that "to the best of the signer's knowledge, in-
formation, and belief, formed after reasonable inquiry, the disclosure is complete
and correct as to the time it is made." The Committee Note (pp. 229-30) emphasizes
that the rule "does not demand an exhaustive investigation at this stage of the case,
but one that is reasonable under the circumstances, focusing on the facts that are
alleged with particularity in the pleadings," and then indicates a variety of factors
that might affect the type of investigation that should be expected.

Rule 26(e) imposes a duty to supplement this disclosure if the party "learns that
in some material respect the information disclosed is incomplete or incorrect and if
the additional corrective information has not otherwise been made known to the
other parties during the discovery process or in writing. " This obligation is actually
less demanding than the supplementation required by prior Rule 26(eXlKA) for in-
terrogatories about persons naving knowledge of discoverable matter, and is essen-
tially the same as under prior Rule 26(e)(2) regarding document requests.

Criticism about the sanctions for violations of the disclosure requirements has
been directed to Rule 37(cKl), which provides that a party "that without substantial
justification fails to disclose information required by Rule 26(a) or 26(eXl) shall not,
unless such failure is harmless, be permitted to use as evidence any witness or in-
formation no so disclosed."'^ This potential penalty — precluding a party from offering
at trial evidence not previously aisclosed by it — hardly justifies any concern about
"over-disclosure." This is an entirely appropriate sanction if a party fails to make
a disclosure required by the tolerant standards prescribed in Rules 26(aXl) and
26(eXl) and this failure is "without substantial justification" and causes harm to an-
other party.

Rule 37(c)(1) recognizes that preclusion of evidence, as just discussed, is obviously
no sanction at all if a party violation fails to disclose information harmful to its posi-
tion in the case. The rule provides that other appropriate sanctions should be im-
posed in such circumstances, which "may include iniorming the jury of the failure
to make the disclosure." Unlike the original published draft, the rule does not man-
date, but merely permits, this type of sanction, as is true now in the analogous situ-
ation of spoliation of evidence. Given the tolerant standards of Rules 26raXl) and
26(eXl) and the need to show that the failure to disclose was both "without substan-
tial justification" and harmful to another party, it is difficult to see why this poten-
tial sanction should somehow result in over-investigation and over-disclosure, any
more than has this same potential sanction for concealment in answering interrog-
atories.

The objection that the national standard calls on defendants to disclose too much,
too early

Though expressly subject to local variation as to scope and timing. Rule 26(aXl)
establishes a framework for disclosure that, in the Advisory Committee's opinion,
is not unfair to defendants, some of whom have complained that it calls for too
much information, too early in the litigation.

The information required to be disclosed — and, more particularly, the identifica-
tion of persons likely to have discoverable information and a general description of
the types of relevant documents, whether or not supportive of the responding party's
position — is clearly information of the sort that courts have ordered provided when
sought through interrogatories. Since 1970, Rule 26(bXl) has declared to be discov-
erable "any matter, not privileged, which is relevant to the subject matter involved
in the action, whether it relates to the claim or defense of the party seeking discov-
ery or to the claim or defense of any other party, including the existence, descrip-
tion, nature, custody, condition, and location of any books, documents, or other tan-
gible things and the identity and location of persons having knowledge of any dis-
coverable matter." The matters to be disclosed under Rule 26(aXl) represent, in fact,
only a subset of the items that parties have long been permitted to obtain through
interrogatories.

Nor does the rule advance the time when a defendant must supply this informa-
tion. Under the prior rule, interrogatories and document requests could be served



^The complaints about possible sanctions for violation of the disclosure requirements have not
generally cited the possible sanctions under Rules 26(g)(3) and 37(aX4), as these are essentially
the same as for failures to answer interrogatories.



22

with the complaint and a defendant was required to respond within 45 days after
service. Under the amended rules, these discovery requests are not to be served
with the complaint and the time for initial disclosure — unless altered bv local rule,
court order, or stipulation — is measured by reference to the times for scheduling or-
ders and the meeting of counsel. In the typical case the defendant's initial disclo-
sures would not be due until approximately 75 days after being served with the
complaint. They would have significantly more time to produce records that might
ultimately be sought through Rule 34 requests following the initial disclosure.

In short, defendants will have to disclose less information than they formerly
could be required to provide, and will have more time to do so.

The objection that disclosure requirements will undermine an attorney's duty to the