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

information needs to be evaluated and any proposed formulation
subject to the rulemaking process. We therefore urge Congress
to defer adoption of the pending automatic mandatory disclosure
provisions in the proposed amendment to Rule 26.



Enclosure




423



AMERICAN BAR ASSOCIATION

TORT AND INSURANCE PRACTICE SECTION

LITIGATION SECTION

GENERAL PRACTICE SECTION

BUSINESS LAW SECTION

YOUNG LAWYERS DIVISION



REPORT TO THE BOARD OF GOVERNORS



RECOMMENDATION

RESOLVED, That the American Bar Association urges 1

Congress to defer until after December 31, 1995, 2

consideration of the proposed amendments to Rule 26, 3

30, 31, 33, and 37 (relating to disclosure) of the 4

Federal Rules of Civil Procedure (which would otherwise 5

become effective on December 1, 1993), to permit the 6

completion of the local district experimentation plans 7

and the assessment of the impact of those programs 8

mandated by the Civil Justice Reform Act of 1990 (CJRA) , 9

and to allow time to analyze the major changes proposed 10

in the pending amendments to the Civil Rules within the 11

framework of the CJRA. 12



424



REPORT



On April 22, 1993, the Supreme Court of the United States,
pursuant to 28 U.S.C. 2072, submitted to the Congress a sweeping
package of amendments to the Federal Rules of Civil Procedure.
The most controversial of the changes would substantially alter
pretrial discovery by mandating a self -executing, continuing
duty on each party to identify all witnesses and documents that
are "relevant to disputed facts alleged with particularity in
the pleadings . "

The amendments will become effective on December 1, 1993, unless
Congress passes legislation before that date to reject or modify
the amendments, or to delay their implementation, in whole or in
part.

The Major Alterations in the Civil Rules.
Particularly The New Mandatory Disclosure
Requirement,. Will Effectively Preempt And
Interfere With the Process Of Experimentation
With. And Evaluation Of. Methods For
Streamlining Civil Litigation That Congress
Mandated in The Civil Justice Reform Act of
1990.

In 1990, Congress enacted the Civil Justice Reform Act ("CJRA"),
which required that every federal district court develop and
implement local rules designed to attack the problem of delay
and expense in civil litigation. The legislation provided for
the involvement of advisory groups, comprised of attorneys and
representatives of major categories of litigants. Thirty-eight
districts already have experimental rules in place, while the
rest of the ninety-four districts were to put their plans in
place by the end of this year — the same time that the proposed
new civil rules are scheduled to go into effect. The Judicial
Conference w^s to evaluate the results and report back to
Congress by the end of 1995.

As Congress recognized when it enacted the CJRA, a period of
extended experimentation at the local level, with ample room for
trial and error and an opportunity for thoughtful analysis and
reflection upon completion of the experimental period, would



425



likely produce the most valuable and effective reform by -

— permitting the collection of empirical data about the
efficacy of proposed reforms,

— allowing an opportunity to involve those who will be
affected by the reforms in the process of developing
and implementing strategies for reform, and

— providing the flexibility to address the varying needs
and ideas of diverse districts throughout the country.

Congress also recognized the need to develop a method of consul-
tation, so that those who have developed effective techniques
for reducing cost and delay in one district could share their
techniques with those in other districts.

The proposed amendments in the Federal Rules of Civil Procedure
would subvert this process of experimentation by putting in
place, among other things, a radical new scheme of mandatory
disclosure which is vague on its face and which raises many
questions concerning its implementation and interpretation.
While the proposed amendments nominally will allow local experi-
mentation to continue, the decision to adopt uniform, national
rules will inevitably disrupt and stifle the experimentation
process that the CJRA set in motion, as litigants and courts
struggle with the meaning and impact of the new national rules.
As Justice Scalia put it in his dissent (joined by Justices
Thomas and Souter) from the transmittal to Congress of the
mandatory disclosure provision, this change is "potentially
disastrous and certainly premature."

Conclusion

Less than three years ago. Congress mandated a period of local
experimentation and study to identify the best methods for
reforming civil litigation. The experiments mandated by the
CJRA are currently underway and the report of the Judicial
Conference is due in little more than two years. Congress
should be asked at least to delay these controversial changes in
the Federal Rules of Civil Procedure un^il the results of those
CJRA experiments can be completed and analyzed.

Respectfully submitted

Leo J. Jordan, Tort and Insurance

Practice Section
Louise A. LaMothe, Litigation Section
Cameron C. Gamble, General Practice Section
John J. McCann, Business Law Section
Mark G. Sessions, Young Lawyers Division

June 1993



June 23, 1993



426



Appendix 21. — Letter From John J. Prout, Jr., C.S.R., Presi-
dent, John J. Prout & Associates, Inc., to Hon. William J.
Hughes, Chairman, June 23, 1993

JOHN J. PRDUT & A55aCIATES, INC.

CERTIFIED iHORTHAM) REPORTERS

f.S SPRINGFIELD AVENUE ,
SPRINGFIELD. N J. OTOBI
TEL :201 I 3"'9-7DlS
FAX 'ZDI : 2-79-73:;6 D f" '"^ *~ I i / I \

K il w Q ! V C J

,,-Ti- T „ 1- Sl^d on Cuu'ts

Hon. William J. Hughes

2138 Rayburn House Office Building

Washington, D.C. 20515-5216

Dear Congressman Hughes :

Having attended the hearing you conducted last week on the proposed
changes to Federal Rules of Civil Procedures, I want to express my
appreciation for your time and consideration in hearing testimony
regarding the proposed change to Rule 30(b) (4) . I would also like
to add some comments.

A question was raised as to the impact if the Rule 30(b) (4)
proposed change goes into effect. It is my belief, and that of my
colleagues, that the overall effect will be a greater consumption
of judicial time than exists under the present rule.

As testified at the hearing by Judge Pointer, there have been no
complaints about court reporters to warrant the change.
Depositions presently are routinely transcribed accurately by court
reporters. Although only a small percentage of cases filed reach
trial, in this area at least 95% of Federal Court depositions are
transcribed. The accurate transcription of depositions results in
a smootner motion practice and, in fact, the settlement of many
cases based on the testimony, accurately transcribed, at
depositions .

Decause the proposed change crDvidss no guidelines for accuracy,
impartiality, and other matters inherent in the court reporter
system, there will be an increase in motions to settle the record
or disallow the use cf deposition testimony because of an
inaccurate record, or even a dispute as to what is on a tape
recording versus the transcript thereof. Under the proposed rule,
tapes could be transcribed by _he lawyer's secretary, or even the
litigant. Certainly the impartiality of the transcript would be
the subject of a motion. As we all know, there have been many
disputes about tape transcription in court cases and, although many
years ago, in the House Judiciary Committee regarding Watergate.
Although the proposal allows the opposing side to use a court
reporter, that, too, will lead to motions as to which record is to
be utilized in motions or trial.



427



Tr is for these reasons that we believe the proposal will have a
detrimental impact on court time and would urge that the proposal
be rejected.
I would request that my comments be considered part of the record.

Thank you for your consideration Should you have any questions or
need further information, I would be happy to respond.

Very 6rulyt yours,

Johil J . Ptout , Jr . , '-t: . S . R .
President

JJP/et



428



Appendix 22. — Letter From Robert Dale Klein, Chairman, Spe-
cial Committee on Rules of Practice and Procedure, the
Maryland Association of Defense Trial Counsel, Inc., to
Hon. William J. Hughes, Chairman, June 22, 1993




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June 22. 1993



VIA FEDERAL EXPRESS



The Honorable William J. Hughes. Chairman
House Subcomminec on Intellectual Property and

Judicial Administration
207 Cannon House Office Building
Washmgton. D. C. 20515-6216

Attention: Edward O'Connell. Esquire

Re: Proposed New Rule 26(aUM to Federal Rules nf Civil Procedure

Dear Mr. Chairman:

On behalf of The Mar>'land Association of Defense Trial Counsel. Inc.
("MADTC"). 1 write to register the Association's opposition to proposed new Rule
26(31(1) of the Federal Rules of Civil Procedure concerning so-called "core
discover)' disclosure."

The MADTC membership includes approximately 600 Man land attome>s
whose principle practice involves representation of defendants in civil litigation.
The .Association is dedicated to the integnty and preservation of the civil justice
system. Its mission is to promote the efficiency of the legal system and fair and
equal treatment under the law. Accordingly, the MADTC suppons the goals of
streamlining and rendering cost-efficient the resolution of civil litigation. In
deference lo these goals, the MADTC submits that the radical amendment of
discoverv' procedures embodied in Rule 26(a)(1). rather than streamlining and
reducinc liticaiion costs, will in fact have the e.xact opposite result.



MADTC

P.O. Box 21431

Baltimore. .Maryland 21 208

(4101 484-6266 • Fax (410) 484-6836



429



Supreme Court's Transmittal : The Supreme Court's transmittal of this Rules change to
Congress should not be understood as an endorsement of the substance of the proposal. The
transmittal letter at best was lukewarm, given that the Chief Justice states that "while the Court
is satisfied that the required procedures have been observed, this transmittal does not necessarily
mean that the Court itself would have proposed these amendments in the form submitted."

Justice White issued a separate statement, distancing the Supreme Court from the proposal.
He spent six pages discussing the limited role that the Supreme Court historically has taken in
reviewing proposed Rules changes. He displayed no enthusiasm for the proposal the Court was
forwarding to Congress.

Of even greater interest is the dissent penned by Justice Scalia, and joined by Justices
Thomas and Souter. with respect to the issue of the inclusion of a new requirement of pre-
discovery core disclosure. Justice Scalia poignantly notes:

The proposed radical reforms to the discovery process are potentially disastrous
and certainly premature - particularly the imposition on litigants of a continuing
duty to disclose to opposing counsel, without awaiting any request, various
information "relevant to disputed facts alleged with particularity." .. This proposal
is promoted as a means of reducing the unnecessary expense and delay that occur
in the present discovery regime. But the duty-to-disclose regime does not replace
the current, much criticized discovery process; rather it adds a further layer of
discovery. It will likely increase the discovery burdens on district judges, as
parties litigate about what is "relevant" to "disputed facts." whether those facts
have been alleged with sufficient particularity, whether the opposing side has
adequately disclosed the required information, and whether it has fulfilled its
continuing obligation to supplement the initial disclosure. Documents will be
produced that turn out to be irrelevant to the litigation, because of the early
inception of the duty to disclose and the severe penalties on a party who fails to
disgorge in a manner consistent with the duty. ..." (Dissenting Statement, p. 4)
(Emphasis in original).

Justice Scalia goes on to urge that "any major reform of the Discovery Rules should await
completion of the pilot programs authorized by Congress [pursuant to the Civil Justice Reform
Act of 1990]. especially since courts already have substantial discretion to control discovery."
(Dissenting Statement.p. 6).

The MADTC respectfully submits that Congress should not rush to adopt an untested and



430



additional layer of discovery procedures based, at best, on anecdotal reports of "discovery' abuse."
Prudence suggests that Congress take a wait-and-see approach, and await the outcome of the
Rules experiments currently in progress under the pilot programs in several federal districts
pursuant to the Civil Justice Reform Act of 1990.

NCSC Studies: Enclosed are copies of two recently-issued studies conducted by the
National Center for State Courts ("NCSC"). One study analyzes data from 2.190 cases in five
different state's courts: the other consists of a survey of 260 attorneys in those states. These
studies essentially conclude that there is no need for changing discovery procedures, and that such
changes would not necessarily "cure" anecdotal reports of "discovery abuse." A fair interpretation
of the studies is that to the extent that discovery abuse occurs from time to time, it is not a
rampant problem and. moreover, tends to be caused by the personalities of the particular
individuals involved. Those personalities will not be cured by new Rules changes. Rather. Rules
changes would simply afford a different set of procedures available for abuse. Although the
studies dealt with discovery in state court practice, in the experience of our Association, the
findings would be equally applicable to discovery under the Federal Rules of Civil Procedure.

In the study entitled Is Civil Discovery in Stale Trial Courts Out of Control?, discovery
practices in the courts of five states where discovery papers are still filed were analyzed.
Interestingly, the study found that discovery is conducted less often than many observers have
asserted. Secondly, the amount of discovery and discovery-related motions activity tends to be
a function of case type and complexity.

The study found that, across the five courts, only 58% of general civil cases have
discovery. The corollary to this finding is that a substantial proportion of cases (42%) have no
formal discovery. In light of this finding, the study concludes that:

Automatic disclosure requirements such as those proposed for the Federal Rules
of Civil Procedure, and implemented in several federal district courts as well as
in Arizona, therefore, may result in imposing a greater burden on litigants because
a relatively large proportion of cases currently do not incur costs for formal
discovery. Rainer than reducing costs and thus facilitating access to the civil
justice system, automatic disclosure requirements may put further restraints on
litigants whose disputes are on the edge of being economical to pursue. Raising
costs at the front end of litigation also leaves less money for settlement and may
encourage defendants to hold out longer than they otherwise might have. The
burden of motion practice on the courts may not be alleviated because the
disclosure rules themselves could generate motions over non-compliance or



431



disagreements about what information is significantly related to the claims or
defenses raised in the pleadings. {Id., at p.21)

Although the study does not conclude that these results necessarily would happen, these
considerations certainly must be weighed heavily before one rushes to adopt automatic disclosure
requirements.

The NCSC study further concludes as follows:

Perhaps the most salient observation that can be made from the NCSC study is that
for the majority of civil litigation formal discovery is not out of control. Although
discovery reform may be necessary to address problems that are not discernible from court
records, the courts and the bar can take remedial measures without instituting major
changes in the rules governing discovery. Most courts currently have some tools to curb
excessive discovery, minimize discovery disputes, and promote greater self-reliance in
resolving disputes that arise. ( Id., at p. 23) (Emphasis added).

The second NCSC study. Attorneys' Views of Civil Discovery, reports that the following
four factors are most predictive of discovery problems (in order of probability): (1) personality
or style of the opposing attorney; (2) inexperience of the opposing attorney; (3) animosity
between the parties; and (4) a large monetary claim. Id., at pp. 14-15. Furthermore, the
attorneys rated the setting of a time frame for completing discovery as the single-most effective
measure to benefit the discovery process, and they rated "two-stage discovery processes" — such
as automatic pre-discovery disclosure procedures — as the least effective. Id., at pp. 22-23.

Conclusion : The MADTC does not oppose most of the Rules amendments forwarded to
Congress. However, we do oppose the proposed amendment to Rule 26(a)(1), and urge that
Congress delete that amendment from the package.




Respectfullyjya



RDK/jo
Enclosures





Dale Klein, Cl)airman
Committee on Rules of
Practice and Procedure



432



Appendix 23. — Letter From Barbara Allen Babcock, et al.,
Ernest W. McFarland Professor of Law, Stanford Law
School, to Hon. Jack Brooks, Chairman, Committee on the
Judiciary, June 11, 1993



STANFORD LAW SCHOOL



June 11. 1993



The Honorable Jack Brooks
House of Representatives
Chairman, Judiciary Committee
2449 Rayburn House Office Building
Washington, D.C. 20515-4309

Dear Representative Brooks:



M\,H , .f^



JUN 1 4 IOC-
IDICIARY COMMITTF^



Ue write as procedure professors to urge that Congress not delay the
effective dates of the proposed amendments to the Federal Rules of Civil
Procedure.

Under a regime that has served us well for 50 years, Congress has three
options at this point in the Rule-making process: Do nothing; delay the
effective date of some, or all, of the Rules; reject them altogether or in
part. The first option is the norm unless Congress believes not only that the
proposals are affirmatively bad, but that they are worse than the present
versions, and/or they exceed the Rules Enabling Act powers, and/or they hurt
discrete groups of litigants, and/or they result from gross failures in the
rule-making process. None of these conditions for rejection or delay is met.

On the first, major condition, we believe that the new rules are
substantial improvements over the old. Let us explain briefly why as to the
two areas of change that seem most controversial. Rule 11, in its present
form has not worked out in practice. Building on what we have learned, the
new version is an important refinement for many reasons including that it will
cut down on the excessive, satellite litigation created by the present rule
over the past decade.

The second set of proposed Rules that have prompted contention are those
on discovery. For far more than a decade, discovery procedures have been a
sore spot in the system. Proposed Rule 26 is designed to eliminate wasteful
and unnecessary paperwork and game playing, mainly through automatic
disclosure provisions chat many districts are already experimenting with under
the Civil Justice Reform Act. The proposed rule expressly preserves local
option, either through a general rule or case-by-case orders. This amendment
is very much in keeping with the letter and spirit of the CJRA, and would,
moreover, resolve the present uneasy situation in which the experimentation
that Congress directed under the CJRA is in apparent conflict with the
discovery rules on the books.

As CO the other reasons for Congressional intervention, there are
obviously no Rules Enabling Act problems: no discrete group of litigants is
hurt because disclosure requirements fall equally on all sides of a law suit;
and as Justice White pointed out, there was no process failure in the rule
making. Generally speaking, we urge the wisdom of Justice White's statement
that accompanied Che Courc's transmission of the rules - a statement made
more weighty because issued as one of his last judicial acts.



433



Speaking from his own 31 years on the Court, and summarizing the
experience of 21 Justices who have sat during that period, Justice White
emphasized that the major place for debate, re -working and re -wording of
proposed rules is in the Advisory and Standing committees of the Judicial
Conference. We would add that the last few years have seen extended debate on
the proposed rules, and the continued revision by the Committees in response
to the input of many groups: the recent exchanges have been examples of the
excellence of this process. Far from being "radical" (see Justice Scalia's
statement) , the proposed disclosure rules have been adopted in many districts
under the CJRA and in states under their procedure codes.

In urging that the rules deserve passage, we do not support their every
jot and tittle, but rather the process that produced them. The design-burden
of the rules should be on those who use them every day, with full opportunity
at the Advisory committee level especially for all interest groups to make
themselves heard. As we already noted, these rules have already been the
subject of much give and take. If the resulting work of the Judicial
Conference committees were routinely up for grabs before the Congress, it
would throw the civil litigation system into a state of flux and uncertainty,
militating against the very purpose of Rules: to direct and predict behavior.

On the basis of our fifty or so (cumulatively) years of teaching and
writing about the Federal Rules of Civil Procedure, we think it would be a sad
and serious error for Congress to re-work and re-word the current proposals,
and could have the unintended consequence of changing for the worse our system
of rule-making. While there may be appropriate occasions for Congress to
consider the fine points of the Rules, this set of Rules, which has been so
thoroughly vetted in appropriate forums, is surely not one of them.

Finally, in addition to urging that you permit the proposed amendments
to become effective, we do commend one statutory change to you. This would be
an appropriate time for Congress to make the Judicial Conference rather than
the Supreme Court, the promulgator as well as the producer of the rules. A
principle reason for this change (as both Justices Scalia and White point out)
is that the Court is in an anomalous position if it must pass on the ultimate
constitutionality of some of the rules it promulgates. Moreover, as Justice
White explained, the members of the Court are ill-suited to judge, ex ante,
the utility and wisdom of proposed changes in trial practice. In reality, the
justices rarely do make such judgments; generally they promulgate the rules
without comment. Given Justice White's thoughtful description of the reality
of the process, we hope that the Congress will enact legislation to conform
the structure of rulemaking to the reality of the process.