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

counsel s anahsis of the strength of the client s f.nciual or legal position.



397



THE aE^ORD



nev. In cie'.eminmg whether abuiive corciuc: has cccurred. the
court mav reach conclusions based upon circurr.stantial evidence
of the behavior, pertbrmance. and mouves of counsel and the
litigants m the context of the dispute.""' In addidon. it shall
constitute abusive conduct for counsel to make a lethal claim,
defense, contention, or ar^unr.ent that :s utieriv tr.voious. A
claina. defense, contention or argument ;s utterlv frivolous when
the assertion has no colorable or plausible basis and is unsup-
ported bv precedent, logic, or rational argumentation. A court
should not sanction a legal claim made with a good faith basis
for the extension, modification, or reversal of exisnng law. In
assessing -.vhether a legal assertion is utterlv frivolous, a court
should consider whether it has anv support in the legal
profession. In assessing the reasonableness of counsers conduct,
parnculariv invesugadons of fact and law. the court shall take
due regard for the resources available to the parties and
counsel, the magnitude of the litigation, and other constraints
bearing upon the matter in question."'

(b) Sanctions Imposed for Abusi-je Conduct

Upon the finding of abusive conduct, the cour^ mav impose
upon the offending person an appropriate sancdon. which may
include a fine, a reprimand, censure, referral to disciplinary
authorities, mandatory continuing legal educadon. an order
precluding the introduction of certain evidence, an order

oJ To some extent, of coune. the "^roiJ ne^iivjence" and the 'recklessness'
standard are diffcrer.t. The distinction betueen ihem and c.he seietuon ot the apt
veroal torniuia has tradiuonaiU perplexed the Supreme Court m litization under
4- U.S.C. § 19S3. Fne Committee is also uncenam at this time as to the apt standard
to trigger <anctions and has included both terms m the dratt rule to faciliate the
.\dvisorv Committee s assessment ot the matter.

-: This >enie.~.i;e is intended to reduce anv ter.rieno ot" a court to require small
t'lrms. public interest tlrms. and pro if litiijanu :o meet tne level ot practice found
in the lar^jcst and most sophisticated urban law t'lrnis. Alihoui^n the new rule should
not immunize the reckless or wilful n^l^coluiuct ot small firms or lawvers
representmif clients ot iinutcd rcjoiirces. these :.-.c:ors >l'.ould he considered bv the
coiiri in determinin.f how much tact in\estn:ntion nr.ri le-^'ai research was enouv(h.
For examtJle. :n a small case ic.,'. a low iiain.T,'e claim arisim,' out o( copvriijht
intnnvjemcnt). :he parties can not reasonabiv be expected to invest Kreat resources
in pre-coinplaint or pre-answcr inxestii^atiun. Simiiuilv. in sucii a case non-wilfuI
errors bv counsel are unlikclv to visit -^reat i\tr:n :o ihe opposin-,' part\ or counsel.



398



i^l.LZ !I



prsciuciing the iitization of cer:::in issues, an order precluding
the litigation of certain claims and defenses, entn.' of default
judgment, dismissal of the action, injunctive relief limiting the
otTender'i future access to the courts, an order to pav to injured
persons financial compensation such as expenses and counsel
fees reasonablv incurred because of the abusive conduct or anv
other sanction the court, in its discretion, finds appropriate.
The court shall applv the least severe sanction capable of
effecting the purpose of this rule. In awarding sanctions under
this rule, the court shall give due regard to applicable sanctions
provisions found in federal or state substantive law relevant to
the merits of the case.



(c) Procedure

Prior to determining the existence of abusive conduct and
determining an apt sanction, the court shall provide adequate
notice to the potentially affected persons and hold an eviden-
tiary hearing, zt which time interested persons shall be permit-
ted to be heard by the court, .\fter hearing, the court shall
render a written decision or decision reducible to writing that
sets forth the court's findings and reasoning relevant to the
determination of abusive conduct and sancdons. Where the
court finds no abusive conduct, the court's decision mav be
suitably brief. Courts shall neither make findings of abusive
conduct nor award sanctions without giving notice to the
affected persons. Litigants who believe thev have been vicum-
ized bv frivolous conduct shall raise the issue, bv motion or
othenvise. at the earliest prac::cable opportunitv. The court
may, and ordinanlv will, reserve decision on anv question of
abusive conduct until completion of the litigation in order that
the allegedly abusive conduct can be placed in its apt context or
mitigated.

(d) Scope

This Rule is intended to applv to all abusive conduct in



399



Triz [ii-::f;RD



licigation and is not limited to the making of unuarranted claims
or the commencement of litiiat:on.''-

fe) VicanoiL'i Liability

A principal is presumptivelv liable for the abusive conduc: of
its azent where the agent commits the abusive conduct within
the icope of his or her authorized agencv'. This presumption
mav be rebutted where the facts in Question show, bv dear and
convincing evidence, that the principal took all reasonable steps
to prevent the abusive conduct and that the agent's actions were
unauthorized and unexpected.

(J) Review

A district court's application of this rule shall be reviewed for
abuse of the courts discretion. However, the level of scrutiny
under the abuse of discretion standard shall var>' on a sliding
scale according to the severity of the sanction under review. In
addition, the adequacy of the court's recora shall be assessed
according to a sliding scale based on the nature of the conduct
and sanction under review.^^

(g) Repeal
The following rules are repealed: 26(g): 37(b)(2)(E^: 56(g).

S'ovember 1990



-• Ai t.hij juncture, the note accotnpanvm^ the new rule would provide that the
comprehensive rule shall be applied equailv bv the courts to intimidation of
tticnesses. refusal to provide discoverv. pursuit of excessive discover.-, motion
prac::ce. '.nai practice, settlement conduct, examination of vvitncsses. making ot
atr.davus. seeliing sanctions, or anv form of abusive conduct made in connection
\»un liti^tion so lonif as the offending person and behavior arc properiv subject to
t.-.e jurisdiction of tfie court.

'i Tlie Committee has substantial concern that it mav be iiupproprtate for the
federal civil rules -jovernintj trial courts co set forth a standard ot review to be
.loplicd bv federal appeals courts. .Voiwithstandin'^ this problem of rule makini;
!ev:i!in:3cv, the Cominiuee holds the view that ihe aijiisc of discretion standard of
•.•?v;cu IS apt and that it should be applied m a manner sensitive lo the cunce.xt of
the sanctions, particularlv the maijnitude and impact of the sanctions. .\ large line,
luaior award ot counsel fees, or a searintj .ind widelv puhlicizetl censure bv the trial
court should receive greater appellate scr.ninv than a court s insistence that
offending counsel .ittend a leminar on ERIS.V prc-empiiuii of cUnnis .iruiiig under
>i.nte iai*.



400

APPENDIX B
SODTHZRN DISTRICT OF NEW YORK



Rule 46. InteiTOifatoriea (Southern Dis-
trict Only)

(a) At the conner.cement af discovers, mt£.TOga-
tores will be .-e53:c:aa to those ieexin? na.T.es of
•sitr.esses wit.-, knowledge or ;r.;onr.acon relevant
10 the subject ~at:*r of the icr.on. the computauon
or each c3te?or/ o: damage alleged, and the exist-
ence, custodian. ;oca:;on ano ier.eni descrpr.on of
relevant doc'j~ents. mciuair.? :erT:nent msuronce
agreements, and ot-ier pnysicai evidence, or ini'or-
manon of a sur.iiar r.ature.

(b) DuTJi? discovery, interrsgatores other Lhan
those see.king aicrr.acon desc-bed in paragnpn
(al. above may only be ser^â– ed d they are a more
pracrxal method of obtaining the information
sougnt than a request for proQuction or a deposi-
tion.

(c) At the conciusion of each parr.-'s discovery,
and pr.or to Lhe discover.^ cut-off date, mterrogaio-
ries see.king the claims and contentions of the op-
posing party may be served unless the court has
ordered ochervise. Questions see.king the names of
expert witnesses and the suostance of their opinions
may also be served, if this miormanon has not been
previously obuined.

fd) No part of an interrogator.- shall be left
unanswered merely because an objeccon is inter-
posed to another part of the mterrogatory.

'ej(l) Where in ooiecf.on ;s made to any interrog-
ator.- or sub-part t.-.ereof or to any aocument re-
quest under Fed.?..Civ.P. 24. the objection shall
state with specalci" ail grounoa. .Any ground not
stated in an objeccon 'vithin the time proviced by
the Federal Rules of Cir.l Procecure. or any e:tten-
sions thereoi. ihail be waived.

(2) Wliere a cia:.T. of pnvilege :s asserted in ob-
jecting :o any â– .nterrc gator.- or document ce.mand.
or suo-part ^.-.ereof. mo an answer is not proviaed
on the basis of s\icr asserr.on.

(i) the attsrr.ey asserr_-.g the sr-.-.:ege shall in
the objection to V.i interrogator.- or cocument
demand, or suo-pait thereof. ;aenc:y t.-.e nature
of the pr.\i!ege iinciuding worx product) which is
being ciaimeu ana :i the pr.v.iege is being issen-
ed in connection •■'•"th a claim or defense governed
by Slate law. -.r.dicate t.-.e sute's pnviiege ruie
being invoked: ana



(u) -Jie roilowicg inioraacon shall be providec
in the oojection. unless divuigence of sue.-, xfor-
manon wouid cause disclosure of the ailegeai-.-
pnvileged infomatton:

(A) for documents: (1) the r.-pe cf document;
(2) general suoject matter of the document; i2)
the aate of the aocumenc U) such other infer-
macon as is sufficient to idencfy the dccum.e.-.t
for a suopoena duces tecum, including, where
appropnate. the author of the document, the
addressee of the document, and. where :ot ap-
parent, the relationship of the author and aa-
dressee to eacn other

(B) for oral comnunicataonsi (1) the name of
the person maJdng the communication ana the
names of persons present while the communica-
tion was made and. where not apparent, the
relationship of the persons preseut to the per-
son niaking the conununicanon: (2) the date
and place of communicanon: (3) the general
subject matter of the communication.

(f) Whenever a party answers anv interrogatory
by reference to records from which the answer mav
be derived or ascertained, as permitMd in Fed.R,
Civ.P. ZSlc):

(1) The speciiication of documents to be produced
shall be in sufficient detail to pemit the interrogat-
ing party to locate and identify the records and u>
"certain the answer as readily as could the parr.-
from whom discovery a sought.

(2) The producing party shall make available anv
wmputenzed information or summaries thereof
that It either has. or can adduce bv a reiaaveiv
simple procedure, unless these materials are pn\-i-
'*?ed or otherwise immune from discovery.

(3) The producing party shall provide any rele-
vant compilacons. abstracts or summaries in its
custody or readily obtainable by it, unless these
matenais ire pn\-ileged or otherwise immune from
discover)-.

(4) The documents shall be made available for
inspecaon and copnng within ten days after semct
of the answers to interrogatones or at a date
agreed upon by the parnes.

CroM References
Federal .'v.i'es of Civil Procedure, see l^ CS.Cwi.



401

APPENDIX C
CENTRAL DISTRICT OF CALIFORNIA



RULE 6. EARLY .MEETING OF COfN-
SEL— REPORT TO COURT— STA-
TUS CONFERENCE

6.1 Time of Early Meetin?. Within wenr.- (20)
days after serr.ee of the answer by the first an-
swenn? defendant, and thereafter as each defen-
dant answers, counsel for the partes shall meet in
person for the purrcses set forth below. Where
there are muit:pie defs.-.dants. counsel for the plain-
tiff snail Uke a:l reaionable steps to schedule the
meetm? so cou.-aei for all parties can attend.
WTiere necessarv in cuitj-defendant cases and upon
a showing of jood cause, counsel nuy apply for one
(1) reasonable e.x:ens:on of time within which to
hold the early ir.eetirj.

6.1.1 Documenu. To e.xchanfe all documents
then reasonably available to a party which are thea
contemplated to be used in support of the allega-
tions of the pleading fJed by the party. Documents
laur shown to be reasonably available to a parT'*
and not e.xchan^ed may be subject to e.xcluaion at
the time of trial.

6.1.2 Discovery. To e.tchanfe preliminary
schedules of discover;-.

6.1.3 Other Evidence. To exchange any other
evidence then reasonably available to a parry to
obviate the filing of unnecessary discovery motions.

6.1. â– ! List of Witnesses. To exchange a list of
wimesses then knon-n to have knowledge of the
facts supporting the material allegations of the
pleading filed by the party. The parties will then be
under a continumg obiigauon to advise the opposmg
party of other witnesses as they may become
known.

6.1.5 Settlement To discuss settlement of the
action.

6.1.6 Complicated Cases. To discuss whether
the action is sufficiently complicated so that all or
part of the procedures of -the Manual For Comple.x
Litigation should be uclized. Counsel may propose
to the Court modif:car.ons of the procedures in the
.Manual to laciiiute :.-.e management of a particular
action.

6.2 Report to Court. Within foureen (14) days
after the Early Meer_-.c. those attending are mutu-
ally obligated to file a Joint Report of Early Meet-
ing with the Court jetting forth a preliminary
schedule of discover^• for each party; discussion of
the likelihood of settlement: discussion of the likeli-
hood of appeara.'.ce of additional panies: a prelimi-
nary esumata of the time required for trial; and
any other mfomation which may be helpful to the
Court in settmi: the case for Status Conference
and/or the Pre-Tral Conference.

6.3 .Notice of RequiremenL Counsel for plain-
tiff shall be resDonsible for giving notice of the
requirements of Local Rules 6.1 ana 6.2 to counsel
for each deienca.".t :i soon as possible after each
defencant s firs: acceanr.ce.



6.4 Status Conference. The Court may place
the action or proceeaing on calendar for a Starts
Conference at a date ro earlier than rwenr.- (20)
days after the Joir.; .".epor: of Early .Meeting ;s due
'to be filed with the Court. The court clerk shall
give prompt nocce to all parties who have then
appeared of the date and time of such Status Con-
ference and shall g-.^e like noace to all parties who
subsequently appear pr.or to the date of such Sta-
tus Confarence.

6.4.1 Revresen:ation at Conference. Each par-
ty appeanng at any Status Conference shall be
represented by the attorney lor Lhe party if pro se)
who is then contemplated to have charge of the
conduct of the tnal on behaif of such party.

6.4.2 Report for Conference. At least ten (10)
days before the date set for a Sums Conference the
parties are mutually required to file a Joint Status
Report discussing the following:

State of discovery, including a descr.pdon of
completed discovery and detailed schedule of all
further discovery then contemplated.

A discovery cut-off date.

A schedule of then contemplated law and mo-
tion matters.

Prospects for settlement.

A proposed date for the Pre-Trial Conference
and the thai

Any other issues affecting the status or
management of the case.



402



Appendix 17.— Letter From Gregory K Arenson, Esq.,
Proskauer, Rose, Goetz & Mendelsohn (With Attachment),
to Hon. William J. Hughes, Chairman, June 14, 1993



cOS ANCCLCS. CAUiF 9O0e7

•2i3 TWCNTttT- STHCCT. N W

aUlTC 0OO
MASMtNCTON. O C- 2003e-09e

ONC BOC* »L*Ct. SUtTt 3«0 WCST

2255 GlAOCS »0*0

SOC* BATON, rtOWtOA 33431

SftS CAC"^0»Nt* ST«CtT

SAM rMANCtSCO. CAl^ir B4lO«



Proskauer Rose Goetz & Mendelsohn

1585 Broadway
New York. N. Y. ioo36

i2t2i 9eO-3000
FAX i2l2) 9S9-2000



1)73 eaoAO srnccT

•OST 0»"»''CC ■OX **A«
CLIfTOM. N J. O^OiS-****



Gregory K. arenson

izm 9eo-3400



tuno'CAN counscl

OUBARAv LCvEOUC
lC OOUARtN & vC IL



9. "ut we -Assc



â– WUSSClS

Sa. AVCHUC CC TCWVUCWES

â–  -lOAO SituS5Ci.S. eCLCiUM



June 14, 1993



VIA UPS

Honorable WllllaD J. Hughes, Chairman
SubcoBinittee on Intellectual

Property and Judicial Administration
Judiciary Committee

United states House of Representatives
207 Cannon, House Office Building
Washington, D.C. 20515-6219
Attn: Edward H. O'Connell, Esq., Assistant Counsel

Re: Proposed Amendments to the Federal
Rules of Civil Procedure

Honorable Sir:

On behalf of the Commercial and Federal Litigation
Section of the New York State Bar Association, I am trans-
mitting a copy of A Commentary on Proposed Changes to the
Federal Rules Governing Discovery prepared by the Committee
on Discovery of which I am chair. We ask that the Subcom-
mittee make this report a part of the record of the hearing
on the proposed amendments to the Federal Rules of Civil
Procedure to be conducted on June 16, 1993.

While the views of this report are exclusively
those of the Commercial and Federal Litigation Section and
not of the New York state Bar Association, you will see that
our Section has grave concerns with the proposed amendments
concerning discovery, particularly the amendments regarding
required initial disclosure, limitations on the numiber of
interrogatories at depositions, and sanctions for failure to



403



supplement responses to discovery requests. Should you or
anyone else on the Subcommittee have questions regarding the
contents of this report, we will be happy to respond. Thank
you for your consideration.

Very truly yours,



Greg<^ry K. Arenson



GKA:sm
Enclosure



pc:



P. Kevin Castel, Esq., Chair

Commercial and Federal Litigation Section



404



A COMMENTARY ON PROPOSED CHANGES TO
THE FEDERAL RULES GOVERNING DISCOVERY

Report of the Commercial and Federal Litigation Section of the
New York State Bar Association

On November 27, 1992, the Judicial Conference of the
United States transmitted to the Supreme Court proposed amendments
to the Federal Rules of Civil Procedure and Federal Rules of
Evidence (the "Judicial Conference Proposal") . The Supreme Court
has until May 1, 1993, to approve and promulgate these proposed
amendments, and, if it does, then Congress has until December 1,
1993, to disapprove or modify them. The proposed amendments
contain significant changes in the rules governing discovery* and
are substantially modified from the proposed amendments circulated
by the Committee on Rules of Practice and Procedure of the Judicial
Conference of the United States (the "Committee Proposal") on which
this Section commented last year (the "Section Report").

The Judicial Conference Proposal has adopted a
requirement that there be an initial discovery meeting among the
parties to formulate a discovery plan, which is to be incorporated
into a scheduling order of the court, whereas the Committee
Proposal had eliminated the discovery conference. The Judicial
Conference Proposal has narrowed the scope of required initial
disclosure, but, as did the Committee Proposal, it shifts the



This commentary does not discuss the changes in proposed
Rule 26(a)(2) concerning the disclosure of expert testimony
and in proposed Rule 26(a)(3) concerning pretrial
disclosure.



405



burden for such disclosure to the party holding the information.
While eliminating the Committee Proposal's limitation on the length
of depositions and imposing a new standard for objections and
directions not to answer during depositions, the Judicial
Conference Proposal retained the Committee Proposal's presumptive
limitation on the number of depositions and interrogatories.
Although specifying the circumstances requiring supplementation of
initial disclosure and responses to interrogatories, document
requests and requests to admit more carefully than in the Committee
Proposal, the Judcial Conference Proposal does not specify the time
when such supplementation is required in a way that will avoid
case-by-case disputes and does not modify the possible sanctions
for failure to supplement in a manner that will discourage such
collateral disputes.

While the Judicial Conference Proposal is an improvement
over the Committee Proposal, it too is seriously flawed and should
be rejected or substantially modified by the Supreme Court or
Congress.

Required Discovery Meeting

Proposed Rule 26(f) of the Judicial Conference Proposal
requires the parties who have appeared, by attorneys of record or
representatives, to meet no later than the earlier of 76 days after
the first appearance of a defendant or 106 days after service of
the complaint on any defendant (that is, 14 days before a
scheduling order must be filed by the court under proposed



406



revisions to Rule 16(b)) to discuss the nature of and basis for
claims and defenses, to explore the possibility of settlement, to
make or arrange required initial disclosure and to develop a
proposed discovery plan. The discovery plan is to encompass the
subjects for discovery and the timing of, form of and limitations
on disclosure, including any variation from the federal or local
rules. Within 10 days of the meeting, the parties are to submit a
written report to the court outlining their proposals for and views
on the discovery plan. The court is then to enter a scheduling
order. Proposed Rule 16(b). Unless otherwise authorized or
agreed, a party may not seek discovery from any source prior to the
parties' discovery meeting. Proposed Rule 26(d).

The Section is pleased that the Judicial Conference
appears to have adopted our suggestion in the Section Report that
there be a required discovery meeting among the parties to develop
a discovery plan before disclosure occurs. As long as the parties
comply, we believe that this approach will promote constructive and
productive cooperation among counsel and may avoid many discovery
disputes and sanctions. In addition, such a meeting should narrow
any discovery disputes to permit courts to address them more
expeditiously and efficiently. The Section wishes to emphasize
that the Judicial Conference Proposal permits the parties, with
court approval, to vary the limitations in the federal or local
rules, an important consideration in appropriate complex or
particular types of cases.



407



Required Initial Disclosure

The Judicial Conference Proposal provides that, at or
within 10 days of the discovery meeting, unless otherwise
stipulated or directed by the court, certain required initial
disclosures are to be made by each party. Proposed Rule 26(a) (1) .
The required initial disclosures include: (1) the name, and, if
known, address and telephone number of each individual likely to
have discoverable information "relevant to disputed facts alleged
with particularity in the pleadings;** (2) a copy or description by
category and location of all documents, data compilations and
tangible things in a party's possession, custody or control that
are **relevant to disputed facts alleged with particularity in the
pleadings;** (3) a computation of any damages claimed by the
disclosing party and documents or other evidentiary material not
privileged or protected from disclosure on which the computation is
based; and (4) any insurance agreements under which an insurer may
be liable to indemnify or reimburse for payments made to satisfy
any judgment. Proposed Rule 26(a)(1)(A) - (D) . These disclosures
are to be based on information *'reasonably available** to the party
making them. Proposed Rule 26(a)(1).

One of the most radical changes contained in the Judicial
Conference Proposal is to shift the burden for initial disclosure
from the party seeking the information to the party holding the
information. The Section sees no clear need for this shift. We
believe that in the routine cases there are already routine
discovery requests that are propounded. However, in more complex



408



cases, discovery requests are not routine and must be tailored to
the situation confronting the parties. The Section believes that
the required discovery meeting is more appropriate and will suffice
to narrow the issues and define the particularized scope of
discovery without further requiring parties to provide their
adversaries with information that has not been requested. We are
further concerned that much wasteful collateral litigation will
occur about whether appropriate initial disclosures were made,
particularly in light of the possible draconian sanction under