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

proposed Rule 37(c) (1) that the evidence be excluded from the case,
unless the failure to disclose was harmless or with substantial
justification. In sum, shifting the burden of initial disclosure
does not obviously improve the existing system of disclosure and
will likely lead to more litigation about the scope and content of
any initial disclosure. The costs appear to outweigh any benefit.

We also believe that the adoption of a required initial
disclosure system based upon a shifting of the burden of producing
information is premature. Under the Judicial Improvements Act of
1990 and Title I of the Civil Justice Reform Act of 1990, several
district courts, including the Southern District of New York and
the Eastern District of New York, are experimenting with different
forms of required initial disclosure. The Section suggests that
radical change such as that in the Judicial Conference Proposal
should await the results from these experiments.

The Section notes that the Judicial Conference Proposal
has attempted to reduce the area for disputes over whether



409



appropriate initial disclosure has occurred. The Judicial
Conference Proposal has limited the required initial disclosure to
information that is "reasonedily available," a standard that,
because it is fact specific, may easily lead to disputes as to its
application.

We are pleased that the Judicial Conference Proposal has
recognized the difficulties inherent in rec[uiring a party to
determine the issues in a case based on an adversary's notice
pleading. It has narrowed the scope of required disclosure of
witnesses and tangible things, including documents, to those
matters "alleged with particularity in the pleadings." The
accompanying Committee Notes to the proposal state:

Broad, vague, and conclusory allegations
sometimes tolerated in notice pleading — for
exeunple, the assertion that a product with
many component parts is defective in some
unspecified manner — should not impose upon
responding parties the obligation at that
point to search for and identify all persons
possibly involved in, or all documents
affecting, the design, manufacture, and
assembly of the product. The greater the
specificity and clarity of the allegations in
the pleadings, the more complete should be the
listing of potential witnesses and types of
documentary evidence.

The Judicial Conference Proposal has also moved toward
the recommendation in the Section Report that the scope of
discovery be narrowed. Thus, the required initial disclosure is
limited to those matters "relevant to disputed facts," not to those
matters that are "relevant to the subject matter involved in the
pending action" or, as in the Committee Proposal, "likely to bear



410



significantly on any claim or defense." We are concerned, however,
that the difference in the scope of disclosure for the required
initial disclosure and other discovery may spawn unnecessary motion
practice and urge consideration of uniformly narrowing the scope of
all disclosure.

Limits On Depositions
And Interrogatories

Proposed Rule 30(a) (2) requires court consent for there
to be more than ten depositions conducted by the plaintiffs,
defendants or third-party defendants in an action. Similarly,
proposed Rule 33(a) requires court consent for any party to serve
more than 25 interrogatories, including all discrete subparts. As
the Section Report stated, we believe that it is premature for the
Federal Rules of Civil Procedure to be modified to include
presumptive limits on the number of depositions or interrogatories.
The Section suggests that any limitation on the number of
depositions or interrogatories should await the numerous local
experiments that are being conducted under the Judicial
Improvements Act of 1990 and Title I of the Civil Justice Reform
Act of 1990 and under local rules.

In the Committee Notes to proposed Rule 26(a)(1), the
Judicial Conference states that it is required to submit a report
to Congress by December 31, 1995, reviewing the experiences of the
several courts under the Civil Justice Refoirm Act and perhaps
indicating the desirability of further changes. The Judicial
Conference says that any changes recommended in its report could



411



not be implemented until December 1998 at the earliest, and
therefore it would rather implement a series of disclosure
obligations under the federal rules now.

The Section's answer to the Committee Notes is that by
adopting the proposed federal rules, the Judicial Conference
appears to be prejudging the desirability of limiting the number of
depositions and interrogatories before all the evidence has been
gathered. The Section does not believe that five more years of
local experimentation in this area will cause a breakdown in the
system of disclosure under the federal rules.

The Section applauds the Judicial Conference Proposal's
modification of the Committee Proposal limiting the duration of
depositions. Proposed Rule 30(d) (1) instead articulates a standard
of behavior during depositions that may, if enforced by the courts
under proposed Rule 30(d)(2), make a significant start in curing
abusive behavior during depositions. Proposed Rule 30(d)(1)
requires that objections be stated concisely in a non-argumentative
and non-suggestive manner and that directions not to answer be made
only to preserve a privilege, to enforce a previously imposed court
limitation, or to present a motion that the examination is being
conducted in bad faith or unreasonably to annoy, embarrass or
cf^press the deponent or a party. If a court finds that there has
been an impediment, delay or other conduct that has frustrated the
fair examination of the deponent, it may, under proposed Rule
30(d)(2), impose an appropriate sanction, including reasonable
costs and attorneys' fees.



m nco r\



412



However, to the extent that proposed Rule 30(d)(2)
encourages local rules to establish a presumptive limit for the
duration of a deposition, the Section disapproves the suggestion.
Limiting the length of depositions will not control harassment or
gamesmanship during depositions and may have the undesired effect
of promoting additional disputes among counsel. A presumptive
limitation will burden the deposition process with disputes
involving the length of time between questions and answers, the
number of minutes spent marking exhibits, the number and length of
breaks and other similarly petty matters. A presumptive limitation
may also have an unfair impact on certain lawyers simply because of
their interrogation style. A methodical style does not necessarily
translate into any form of abuse. Moreover, some witnesses may be
less than forthcoming, so that extra time must be spent to discover
that witness's knowledge. Accordingly, the Section is pleased that
the primary approach adopted by the Judicial Conference Proposal
for reducing deposition abuse is to regulate and sanction the
abusive tactics themselves.

Duty To Supplement Disclosure

Proposed Rule 26(e) imposes an affirmative duty upon a
party to supplement prior disclosures or responses that are
incomplete or incorrect in some material respect if the corrective
information has not otherwise been made known during the discovery
process or in writing. In particular, Proposed Rule 26(e)(1)
requires supplementation of the required initial disclosure "at
appropriate intervals," and Proposed Rule 26(e)(2) requires



413



supplementation of responses to an interrogatory, request for
production or request for admission when the party learns that the
prior response was materially incomplete or incorrect. Proposed
Rule 37(c)(1) requires a court to exclude such supplementary
information from evidence at trial, at a hearing or on a motion
unless the failure to disclose was harmless or with substantial
justification.

The Section endorses the principle of required
supplementation of disclosure but is concerned that the proposed
rule may generate too many collateral controversies, particularly
regarding the timing of supplementation of responses. The
requirement that initial disclosure be supplemented at appropriate
intervals, without defining that term, is an invitation to a sui
generis review by the court in each case in which a party may gain
an advantage by having the information excluded under proposed Rule
37(c)(1). The requirement that an earlier response be corrected
when a party learns it is materially incomplete or incorrect may
impose a burdensome obligation in complex cases to review and
update discovery responses on a continuing basis.

The Section believes that all disclosures should be
supplemented, under the standards in proposed Rule 26(e), as part
of the pretrial disclosures required to be made at least 30 days
before trial under proposed Rule 26(a)(3). However, exclusion of
evidence, unless the failure to supplement was harmless or with
substantial justification, should not be a recmired sanction.
Instead, if the nonsupplementing parties can demonstrate



414



substantial prejudice from the failure of the supplementing party
to disclose the information earlier, then appropriate remedies
should be formulated by the court, including further limited
discovery, possibly at the expense of the withholding party, or
perhaps exclusion of evidence.

Summary

While the Section endorses much of the Judicial
Conference Proposal, the Section believes that it is too flawed to
be promulgated without modification. The scope of discovery should
be narrowed, there should not be a shift in the burden of the
initial disclosure, the timing for the supplementation of responses
should be clarified, and the sanctions for a failure to make
initial disclosures or to supplement responses should be tailored
to each case. The Section recommends that the Supreme Court or
Congress either modify the Judicial Conference Proposal or reject
it in its entirety so that a less flawed proposal may be produced.

Dated: March 18, 1993



Committee on Discovery:

Gregory K. Arenson, Chair
James A. Beha, II
Lawson F. Bernstein
Rosemary B. Boiler
John J. Carl in
Harris N. Cogan
Thomas E, Fleming
Seth Goodchild
Richard F. Griffin
Lisa Gersh Hall
Beth Haroules
Martha K. Macinski



Joseph E. Moukad
David B. Newman
Carol Noymer
Allan M. Pepper
Nancy L. Pontius
Sharon M. Porcellio
Michael B. Sena
Peter T. Shapiro
Michael D. Tryon
Michael P. Vessa
Howard S. Wolf son



415



Appendix 18.— Letter From William K. Slate II, President,
Justice Research Institute, to Hon. William J. Hughes,
Chairman, June 24, 1993



J USTICE RESEARCH I NSTITUTE

SlGSoiiih Tliird St ret-t Philadelphia. PA 19147 2308
Td. 1215) 574 8030 Fax (215) 574-8032



18<H» M SuccuXW. Suiu- 730S.«iih RP'^Fi V£D

Wusliiiimoii. IK" :»t)().«>-S«02 "^ C^ t.'

Tel. ( 2()2 ) 7H.V.S9 1 9 FaA ( 202 ) 78iv.=>922

JUN2 9 1993
June 24, 1993 ^^^ ^^ courts



Hon. William J. Hughes
Chairman. Judiciary Subcommittee

on Intellectual Property and Judicial Administration
House of Representatives
241-CHOB
Washington. DC 20515

Re: Federal Rules of Civil Procedure
Rule 30(b)(4)

Dear Mr. Chairman:

It was a pleasure appearing before your Committee last week in support of maintaining
30(b)(4) in Its present form.

A very significant point, only modestly referenced in my oral presentation, prompts this
brief follow-up letter.

The point is this: Because an overwhelming percentage of depositions are
transcribed, the review of those printed depositions enhances settlement and concurrently
reduces the number of cases which go to trial.

Our research suggest that upwards of 98 percent of ail depositions taken are transcribed
and considered by counsel in determining whether to settle a case or go to tnal. In that sense,
it is not farfetched to see the transcnbed deposition review as a form of ADR-diverting cases
from going to tnal. Hence, encouraging methodologies which preclude facile pretrial review
of testimony will undoubtedly result in more civil tnals for federal judges.

In fact, an analogous e.xpenence on the criminal side has recently been documented in
California. A legislative initiative known as Proposition 1 15 was designed to "streamline" the
cnmmai justice system by enabling parties to bypass preliminary hearings. The unfortunate
result for the court svstem is that cases which would be sifted out at the preliminary hearing,



416



and charges reduced to something appropriate or dismissed, now end up in trials as cases that
are very weak, but nobody knows it until they are tried. The rate of acquittals for criminal jury
trials has increased substantially, and the impact on the courts of the time consumed needlessly
has been found to be significant.

In conclusion, I would hope that the civil justice system would retain its important
preliminary review stage through the use of printed depositions, and that neither the courts nor
the Congress would promote a rule which has as its norm the encouragement of methodologies
which are more expensive, less accurate, and foster the use of pass6 technologies which are not
computer based.

Again, I reiterate my sincere thanks for your kindness at the public hearing, and also my
high regard for your longstanding commitments to improvements in the administration of justice.



Yours sincerely,

William K. Slate, II
President



417



Appendix 19.— Letter From Fulton Haight, President, Amer-
ican College of Trial Lawyers, to the Subcommittee on In-
tellectual Property and Judicial Administration, June 28,
1993



Amtviam College of Uml iT/itDjirrs

8001 Irvine Center Drive. Suite 960
Iivine. California 92718





Telephone
(714) 727-3194


TeWcopier
(714) 727-3894


OniCe of the Pyvsdent
FukonHaigM


^


^


1620 26lh Street Suite 4000 Noflh
Sana Monica. Cotfefnia 90404

P.O. Ba 680
Sana AVmica. CaUfcxTua 40406
(310) 44»€000
RBi(310)a29-5n7


June 28,


1993



Intellectual Property and Judicial

Administration Subcommittee
U. S. House of Representatives
207 CHOB
Washington, D.C. 20515

Re: Proposed Amendments to Rule 26faWl^

Gentlemen:

As President of the American College of Trial
Lawyers, I have been provided with a copy of a "Statement of
Business Roundtable Lawyers Committee, et al" urging that
Congress delete proposed Section 26(a)(1) from pending
Amendments to the Federal Rules of Civil Procedure.

Appendix C to that filing contains a "List of
Signatories to Comments to the Judicial Conference in
Opposition to Disclosure Submitted by Bar Associations,
Business Associations, Corporations, Public Interest Groups,
Attorneys and Judges." Amongst the organizations listed is
the American College of Trial Lawyers .

This listing is in error . The Board of Regents of
the American College of Trial Lawyers had previously voted
that it would remain neutral on these proposals . At the early
stage of the evolution of these proposed amendments, fairly
strong tensions existed between the views of the Federal Rules
of Civil Procedure Committee of the American College of Trial
Lawyers and the Advisory Committee of the Judicial Conference.
Thereafter, the American College of Trial Lawyers Committee
was permitted to work with the Advisory Committee through
numerous drafts, making ongoing suggestions, many of which
were adopted. Therefore, while total agreement is not
realistically achievable in this process, the American College
of Trial Lawyers' Federal Rules of Civil Procedure Committee



418



has recommended that opposition to the Proposed Amendments is
inappropriate. It has also expressed appreciation for the
opportunity to work with the Advisory Committee on the
evolution of these Rules. Based on the recommendation of the
College's Civil Procedure Committee, the Board of Regents of
the American College of Trial Lawyers determined to remain
neutral on the proposed Rules now before Congress,

We request that you note this clarification.

very truly yours-,

I ] !'




/ Fulton Haight!
President /

FH:od/C844

cc: Honorable Sam C. Pointer, Jr.



419



Appendix 20.— Letter From J. Michael McWilliams, President
American Bar Association (With Attachment), to Hon
William J. Hughes, Chairman, June 23, 1993



/BV.



I. MICHAtl McWILLIAMS

Olliie Ml ihe \*rtrsMivnt

Ament jn 8.ir Crnlw

'So \iHlh I jke shnrir Onve

Chic.iKC) lllimm bOdll

THfphiini- â–  ll.'i -IKBolO"*

Fja ilUltHOolUd



June 23, 1993



AMERICAN BAR ASSOQAnON Please Reply to:

Tvdinst & RoMmbem
JMhFkxv
. ^ ^ , . , , - _ l(» tdU PrjII Siwel
- I V CLy Ballimore. mO 2\202

T»tepho(H-. 4ll)/r"i2 97(l4
Fj«: 410/752-5228
• I ty q ^093 ABA/n«<: !MtVVlLllAMSI



re:



SuiO on Courts



The Honorable Wllliao J. Hughes

Chairman

Subcominittee on Intellectual Property

and Judicial Administration
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20S15

Dear Chairman Hughes:

I am writing on behalf of the American Bar Association to
urge Congress to defer adoption of the proposal in the amend-
ments to Rule 26, the general provisions governing discovery,
that would add a new requirement for automatic mandatory early
disclosure of certain relevant "core" information "relevant to
disputed facts alleged with particularity in the pleadings."

The ABA Board of Governors on June 18, 1993, adopted the
following resolution:

Resolved that the American Bar Association urges Congress
to defer until after December 31, 1995, consideration of
the proposed amendments Co Rules 26, 30, 31, 33, and 37
(relating to disclosure) of the Federal Rules of Civil
Procedure (which would otherwise become effective on
December 1, 1993), to permit the completion of the local
district experimentation plans and the assessment of the
impact of those programs mandated by the Civil Justice
Reform Act of 1990 (CJRA) , and to allow time to analyze the
major changes proposed in the pending amendments to the
Civil Rules within the framework of the CJRA.

This resolution was jointly proposed by the Tort and Insurance
Practice Section, the Litigation Section, the General Practice
Section, the Business Law Section and the Young Lawyers
Division.

I ask that this policy statement be nade a part of the
record of the Subcommittee hearings on the proposed amendments
that were held June 16, 1993.



Justice >c-

all



420



civil Justice Reform Act of 1990

The ABA agrees with the need to reduce costs and delays in
civil litigation in the federal courts, fully supports the
objectives of the CJRA, and specifically endorses the concept of
active, creative and effective case management. The program
that was developed under the CJRA was developed within the
context of the Rules Enabling Act. It incorporates the
guidelines and principles of the legislation, including improved
case management in trial courts, the formation of advisory
groups, the evaluation of new management techniques, and the
establishment of demonstration programs to experiment with
different methods of reducing cost and delay and different case
management techniques. Under this approach, district courts are
permitted to develop their own civil justice expense and delay
reduction plans, and the Judicial Conference is authorized to
develop one or more model plans. Implementing the proposed
amendments at this time would undermine the positive response to
the Civil Justice Reform law by the bench and bar, and short
circuit the serious efforts underway in the districts to reduce
expense and delay.

The debate on the proposed disclosure amendments would
greatly benefit from an evaluation of the experimentation
undertaken under the requirements of the CJRA. The genius of
that law is its recognition of the need for experimentation -
the freedom to learn by trial and error — to achieve civil
justice reform goals. Many of the expense and delay reduction
plans developed by the various district courts require automatic
disclosure of certain information by the parties. The 15 plans
(of the plans thus far completed) that provide for some kind of
automatic disclosure are: Northern District of California,
District of Delaware, District of Idaho, Southern District of
Illinois, Northern District of Indiana, District of
Massachusetts, District of Montana, Eastern District of New
York, Southern District of New York, Western District of
Oklahoma, Eastern District of Pennsylvania, Eastern District of
Texas, District of the Virgin Islands, Northern District of West
Virginia, and District of Wyoming.

We believe that the orderly process enacted by the CJRA
should not be truncated, as it would be if the proposed
amendments to Rule 26 dealing with disclosure were permitted to
go into effect on December 1, 1993. That is the deadline date
for all districts to implement their cost and delay reduction
plans. These plans will yield a substantial body of empirical
information on the experience with various disclosure plans
which the Judicial Conference will be evaluating as part of the
report it is mandated to submit to Congress by December 31,
1995. Thereafter, as the CJRA contemplates, any recommendations
could be handled expeditiously through the rulemaking process.



421



Rule 26 Disclosure Revision

The automatic mandatory disclosure duty contained in the
amendments proposed by the Judicial Conference are drastic and
untested and should not be implemented at this time. The
proposed disclosure requirements contained in the Court's April
22, 1993, communication to Congress transmitting the proposed
amendments to the Federal Rules of Civil Procedure supersedes
the proposal

contained in the Advisory Committee's draft rules, the only
proposal that was subject to public comment. The new proposal
emerged from the Advisory Committee's deliberations over the
comments on the earlier version; and although the proposal is a
very different formulation, it has not been subject to public
review during the procedural rulemaking process.

I would also note that the Judicial Conference itself casts
considerable doubt on the wisdom of proceeding with the proposed
disclosure changes and acknowledges the need to accommodate the
CJRA by including in the introductory clause of Rule 26 an
opt-out provision "permitting any court, by local rule, to
exempt all or particular types of cases from these disclosure
requirements or to modify the nature of the information to be
disclosed. "

According the to Advisory Committee Notes on Rules 26 (at
page 226, House Document 103-74, 103d Congress, 1st Session,
Amendments to the Federal Rules of Civil Procedure and Forms ) :

Authorization of these local variations is, in large
measure, included in order to accommodate the Civil
Justice Reform Act of 1990, which implicitly directs
districts to experiment during the study period with
differing procedures to reduce the time and expense of
civil litigation. The civil justice delay and expense
reduction plans adopted by the courts under the Act
differ as to the type, form, and timing of disclosures
required. Section 106(c)(1) of the Act calls for a
report by the Judicial Conference to Congress by
December 31, 1995, comparing experience in twenty of
these courts; and section 105(c)(2)(B) contemplates
that some changes in the Rules may then be needed.
While these studies may indicate the desirability of
further changes in Rule 26(a)(1), these changes
probably could not become effective before December
1998 at the earliest.

Conclusion

The ABA continues to support the intent of the CJRA and
believes that the positive results of the experimentation
process in the districts should not be impeded by the premature
imposition of rhis untested proposal. We are mindful that our



422



request for Congress to reject the disclosure duty proposed in
the pending Rule 26 amendments may be viewed as a dilatory
tactic. I assure you that this is not the case. The
Association fully supports the Rules Enabling Act and has been
an active participant in that process since its inception. We
commend the Advisory Committee and the Judicial Conference for
its diligent efforts in forging uniform rules of procedure for
the federal courts. However, in this instance, the process was
premature and incomplete. There was no opportunity for notice
and comment in the drafting of the current formulation of the
disclosure proposal, and the current proposal does not take into
account the experience with the innovative disclosure plans
implemented by the district courts under the CJRA. Before
formulating a final national disclosure rule, this valuable