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

Thank you for your consideration of our views on this important
matter.

Very Truly Yours,

)

V _-^'TfarDara-Ai:ren_BaBcock

7 Ernest W. McFarland Professor of Law
Stanford Law School




434




./&Ayc^t^



Cocipei' Xvfexan^r
Associate Professor of Law
Stanford Law School



:ixc> c



r



^hkxti^



Janet E. Halley

Associate Professor of Law

Stanford Law School



L



inda j;^ Kriegar



Linda

Lecturer in Law

Stanford Law School




lith Resnik
/Orrin B. Evans Professor of Law
University of Southern California
Law Center



cc: Members of the Senate Judiciary Committee
(Copies Enclosed)



435



Appendix 24— Letter From Nan Aron, Executive Director,
Alliance for Justice, et al. (With Attachment), to Hon.
William J. Hughes, Chairman, June 16, 1993



Alliance
Justice^"'












Z^Tf • :r»-i# * /^



-»- ^* -••«



St-* *-r ■• •••«e*»»



' .J» .*'-•■



M»^* -•■■" .!• **:






•*** - » s:jCJ-<- *t«



sj- • -« w -»- 1 i-t* C**"**



<•—•-• .aw O*'*^* >^^



A Nainnal Aa Mention el Orginmiion» Wownnq lof EouH Jmiiet



1601 Conowiicul Av«»j«. N W Suil* 600 ■ WaWingion. C 20OO9 • 202/332-3224



June 16, 1993



The Honorable Wiliiam J. Hughes

Chaimun, SubcommitUi on Intellectual Property

and Judidai Administration
House Judiciary Committee
207 Cannon House Office Building
Washington, DC 20S1S

Dear Chairman Hughes:

We, the undersigned organizations, are writing to express our
views on the proposed amendments to the Federal Rules of Civil
Procedure cunently before the Subcommittee on Intellectual Property
and Judicial Administianon of the House Judiciary Committee. As
representatives of public interest litiga:.:s. we have a tremendous
interest in the federal court system and its goal of providing to all
citizens fair and equal access to justice.

We applaud the Committee on Rules of Practice and Procedure
of the Judicial Conference of the United Stales for the proposed rule
changes, which attempt to streamline litigation, curtail discovery
abuses, and increase judicial power to control tlie litigation process.
We respect these laudable goals and enthusiastically support many of
the amendments.

We are particularly supportive of the proposed changes to Rule
11. In its current form, the rule has generated exacUy what it was
meant to eliminate: excessive and needless litigation. More
importantly, it has been disproportionately and unfairly applied to
public interest and civil rights plaintiffs. The revised rule is intended
to address both problems, and we believe that overall it does so very
successfully. Accordingly, we strongly urge the Subcommittee to woric
expeditiously to ensure its prompt enactment.



El



81-258 0-94-15



436



Our unqualified support for revised Rule 1 1 leads us to request that the Subcommittee
consider reviewing — and endorsing - it separately from the rest of the proposed
amendments. Both plaintiff and defendant legal representatives appear to support it
enthusiastically and, for the most part, unconditionally. We know that other proposals will
generate more substantial opposition and may warrant more extensive review than Rule 1 1 .
We implore the Subcommittee to act promptly on the latter, which represents a long overdue
and welcome attempt to restore balance and fairness to the federal litigation process. Our
substantive comments on the entire amendments follow.



Rule 11

We strongly support the Rule 1 1 revisions. The current rule has created an explosion
of satellite litigation that is excessively burdening courts and frustrating virtually all members
of the trial bar. Moreover, it is disproportionately used against plaintiffs, particularly civil
rights plaintiffs. Finally, Rule 1 1 in its current form has become less of a vehicle for
curtailing frivolous litigation and more of an avenue through which lawyers battle each other
over awards of costs and attorneys' fees.

Several proposed changes are particularly noteworthy. First, the revised rule
explicitly exempts discovery procedures from its scope. This clarification will reduce the
enormous litigation that has arisen over the proper application of the current rule. Second,
making sanctions permissive rather than mandatory will curtail much marginal Rule 1 1
litigation; by decreasing the likelihood of sanctions, the rule will also lessen the potential for
lawyers to recover costs and attorneys' fees and thus provide a disincentive for filing
questionable sanctions motions. Third, the revised rule appropriately focuses on deterrence
rather than compensation by specifically limiting sanctions to an amount necessary to deter
similar violations and explicitly permitting sanctions to be paid to the court as "a penalty"
rather than to the opposing party. When sanctions are awarded to the opposing party, they
are limited to reasonable attorneys' fees and expenses incurred due to the violative conduct.
This provision will also help reduce the current rule's financial incentive for attorneys to
move for sanctions.

Fourth, as proposed the rule provides for a 21 -day "safe harbor" period during which
a party, once notified of a motion for sanctions against it, can modify or withdraw the
challenged pleading. This provision will allow parties to resolve potential sanctions issues
without involving the court's time and resources and should reduce Rule 1 1 litigation
considerably. Justice Scalia has claimed that "those who file frivolous suits and pleadings
should have no 'safe harbor'." {See Amendments to the Federal Rules of Civil Procedure and
Forms, as announced April 22, 1993 (Scalia, J., dissenting) (attached)). The original intent
of Rule 11, however, was not to punish those who plead in error, but to remove frivolous
lawsuits from the courts. Providing a "safe harbor" does not free a party from warranted
punishment, but simply allows a party to reconsider their pleadings when objections about



437



their merit have been raised. By permitting the party to amend its pleadings and avoid
sanctions, this provision will better serve the rule's true purpose of discouraging non-
meritorious litigation.



Discovery

The proposed rules make major changes in discovery, including mandatory disclosure
of certain items, limits on the use of depositions and interrogatories, mandatory
supplementation of discovery responses, and methods of recording deposition testimony. We
take no position on most of the mandatory disclosure additions (Rule 26(a)), although we do
oppose the requirement regarding damages calculations (Rule 26(a)(1)(C)), which is simply
unworkable. Such calculations may not be able to be made that early in the litigation process
because the actual amount of damages is not known. This is especially true when critical
information bearing on damages is in the hands of the defendant.

We approve of the changes to Rule 26(e) requiring mandatory supplementation of
discovery responses. The present rule, under which parlies do not supplement unless
specifically asked, does not work. Parties should have a right to rely on discovery responses
without being told at trial that the information is stale. Our only concern is the language
regarding when supplementation must occur ("at appropriate intervals" for mandatory
disclosures, see Rule 26(e)(1); "seasonably" for other disclosures, see Rule 26(e)(2)). The
language in both is too vague and should be replaced by a requirement to supplement within
30 days of discovering that information is erroneous or no longer entirely accurate.

The ten-deposition limit (Rule 30(a)(2)(A)) is likely to be overly restrictive in many
cases, but we are not opposed to it in light of the provision allowing the parties to stipulate,
without judicial intervention, for a larger number of depositions to be taken. We do oppose,
however, the 25-interrogatory limit (Rule 33(a)). The rule is especially problematic for
plaintiffs, who typically use interrogatories to gain basic information about a defendant's
practices. Generally, the use of interrogatories is an efficient way to avoid more expensive
forms of discovery, thus significantly limiting them appears unwise.

We strons'v support t!ie proposai regarding the methods for recording deposition
testimony (Rule 30(b)>. .As revised, the rule allows testimony in a deposition to be recorded
by "sound, sound-and- visual, or stenographic means." This change is particularly beneficial
to public interest litigants, who generally have limited financial resources, since it will allow
audiotaping or videotaping of depositions, less expensive forms of recordation than
stenography. We implore the Committee to accept this important change.



438



Experts

We oppose proposed Rule 26(a)(2)(B) & (C), which require parties to submit, for
each expert witness, a written report 90 days prior to trial detailing the substance of the
expert's expected testimony. Intended to render pre-trial preparation more efficient and less
expensive, the revision is likely to have precisely the opposite effect by necessitating
additional work that does not advance the litigation.

Sophisticated litigants typically take the depositions of opposing experts. Although
the current rules do not allow these depositions as of right, opposing counsel generally agree
to them since it is in everyone's interest to learn as much as possible about the opinions the
opponent will offer. Expert depositions are an occasion for probing the scope of the expert's
opinion and the basis for the conclusions. They are very effective in narrowing the issues in
dispute at trial.

A written report is unlikely to obviate the need for and usefulness of depositions.
Instead, the report will simply become another subject of inquiry in a deposition.
Conversely, the requirement will undoubtedly increase the cost of litigation, because experts
will be paid to draft reports and counsel will spend time reviewing and commenting on
drafts. These added costs will be especially onerous for civil rights and public interest
plaintiffs, who, except in employment litigation, cannot recover the costs of expert expenses
even when they prevail.

More generally, the time deadlines for disclosure of expert testimony (Rule
26(a)(2)(C)) should be tied to the close of discovery rather than the trial date, since the
apparent purpose of the deadlines is to allow enough time for pre-trial discovery and to
protect litigants against delaying tactics. Under the proposed rule, a litigant may not receive
the names of some witnesses she needs to depose until after the discovery date has passed.
Ninety days before the end of discovery is a more reasonable deadline.



Attorneys' fees

The proposed changes in Rule 54 specify a time for filing attorneys' fees motions and
permit referral of attorneys' fees matters to special masters or magistrates. Revised Rule 58
clarifies the relationship between appeals on the merits and the determination of fee awards.

In general, we support the special masters or magistrates provision. Fee litigation is
so distasteful and often so protracted that any chance of prompt resolution seems agreeable.
We do object, however, to the 14-day period for filing. It is much too shon a time to
prepare the extensive documentation regarding hours, expenses, and other necessary
information. Many local rules have a 60-day time limit, which is far more reasonable.



439



We also have difficulty with the proposed changes to Rule 58, which streamline fee
litigation and judgment appeals. First, when the party against whom a fee claim lies is going
to appeal the underlying judgment, it is usually futile to litigate the fee question before the
appeal. The reason is obvious ~ if the judgment is reversed or modified, then the question
of fees generally becomes irrelevant. Accordingly, except in the most uncomplicated fee
cases, litigating the fee issue prior to or simultaneously with an appeal seems unwise and a
waste of judicial resources.

Second, the tolling rule - stating that an order tolling the time for appeal must be
entered before notice of appeal is filed and becomes operative - is rather circuitous. Since
the order must be preceded by the filing of a motion for fees, and prior notice of that motion
must be given to the adverse pany, the latter will nearly always be able to file, if she
desires, a notice of appeal before a tolling order can be entered. As a practical matter,
adjudication of the tee question before appeal will only occur if the parties have agreed that
the case should proceed that way. The proposed streamlining rule appears confusing and of
dubious value.

Conclusion

Overall, we support the proposed amendments to the Federal Rules of Civil
Procedure. They are a welcome attempt to restore fairness and equity to the federal
litigation process, which for too long has been disproportionately costly and burdensome to
plaintiffs. As noted above, we urge the Committee to promptly endorse revised Rule 11,
which appears to be widely supported by all interested parties. The remainder, including
some of the ones we highlighted as particularly troublesome, should be considered separately
if necessary to ensure that enactment of Rule 1 1 is not delayed.



Respectfully,
Nan Aron



On behalf of:

ALLIANCE FOR JUSTICE
BAZELON CENTER i OR MENTAL

HEALTH LAW
CENTER FOR LA W AND SOCLiL

POLICY
MEXICAN-AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND
NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION



440



61 L\X 4:J'J2



The United States LA^ WEEK



4-27-93



AMENDMENTS TO THE FEDERAL RULES
OF CrviL PROCEDL'RE

(Apr.l 22. 19931

Justice Scalia. with whom Justice Thomas joins, and
wnth whom JUSTICE SoLTER joins as to Part II. filed a
dissenting statement.

I dissent from the Court's adoption of the amendments
to Federal Rales of Cml Procedure 11 (relaung to sanc-
tions for fnvolous Litigation), and 26. 30, 31, 33. and 37
'relating to discovery). In my view, the sanctions proposal



*In dissennng from the order transmitting the Chapter Aill
Baru(rupic> Rules. Justice Douglas, among other things said: Torty years
ago I had pernaps some expertise m the field; and I know enough about
histor> our Constitution and our deasions to oppose the adoption of Rule
920. But for most of these Rules I do not have sufBnent insight and
experience tr kjio* whether the are desirable or undesirable. I must,
therefore, disassociate myself from them." 411 U. S. 992. 994 (1973).

With respect to Amenaments to tne Rules of Cnminai Procedure
forwaroed S> tne Cour. a year later, the following stat*ment was
appended to the Courts order 416 U. S. 1003 (1974): "MR. JUSTICE
I>)U0LA5 is occosed to the Court's being a mere conduit of Rules to
Cong-ess sircp '.."e C.iur*. has nad nc hand m draining them and has no
comc»»ter.ce '.: a^sicn tneTl ir kee-inc *nth the titles and spin: of the
CT.r.::i:::-r. "



will eliminate a significant and necessary deterrent to
frivolous litigation; and the discovery proposal will in-
crease litigation costs, burden the district courts, and,
perhaps worst of all, introduce into the trial process an
element that is contrary to the nature of our adversary
system.

I
RuU 11

It is undeniably important to the Rules' goal of the
just, speedy, and inexpensive determination of every
action," Fed. Rule Civ. Proc. 1, that fnvolous pleadings
and motions be deterred. The current Rule 11 achieves
that objective by requiring sanctions when its standards
are violated (though leaving the court broad discretion as
to the manner of sanction), and by allowmg compensation
for the moving party's expenses and attorneys fees. The
proposed revision would render the Rule toothless, by
allowing judges to dispense with sanction, by disfavoring
compensation for Utigation expenses, and by providing a
21-day "safe harbor" within which, if the party accused
of a frivolous filing withdraws the filing, he is entitled to
escape with no sanction at all.

To take the. last first; In my view, those who file
frivolous suits and pleadings should have no "safe harbor."
The Rules should be solicitous of the abused 'the courts
and the opposing party), and not of the abuser Under
the revised Rule, parties will be able to file thoughtless.
reckless, and harassing pleadings, secure m the knowledge
that they have nothmg to lose: If objection is raised, they
can retreat without penalty. The proposed revision
contradicts what this Court said only three yesirs ago:
"Baseless filing puts the machinery of justice m motion,
burdening courts and mdividuals alike with nee(iless
expense and delay. Even if the careless btigant quickly
dismisses the action, the harm triggering Rule ll's
concerns has already occurred. Therefore, a Utigant who
violates Rule 11 merits sanctions even after a dismissal."
Cooler & Gell v. Hartmarx Corp., 496 U. S. 384. 398
(1990). The advisory committee itself was formerly of the
same view. Ibid, (quoting Letter from Chairman. Advisory
(Committee on Civil Rules).

The proposed Rule also decreases both the likelihood
and the seventy of punishment for those foolish enough
not to seek refuge in the safe harbor after an objection is
raised. Proposed subsection (c) makes the issuance of any
sanction discretionary, whereas currently it is required.
Judges, like other human beings, do not like imposing
punishment when their duty does not require it. especially
upon their own acquaintances and members of their own
profession. They do not immediately see, moreover, the
system-wide benefits of serious Rule 11 sanctions, though
they are intensely aware of the amount of their own time
it would take to consider and apply sanctions in the case
before them. For these reasons, I think it important to
the effectiveness of the scheme that the sancuons remain
mandatory.

Finally, the likelihood that frivolousness will even be
challenged is diminished by the proposed Rule, which
restncts the award of compensation to "unusual arcum-
stancts," with monetary sanctions "ordinarily" to be
payable to the court. Advisory Committee Notes to
Proposed Rule 11. pp. 53-54. Under Proposed Rule
11(c)(2), a court may order payment for "some or all of the
reasonable attorneys' fees and other expenses mcurred as
a dirert result of the violauon" only when that is "war-
ranted for effective deterrence." Since the deterrent effect
of a fine is rareiv increased by alterme tiie iden-.:;v of '.he



441



-<);5



The iniled Slates LAV WEEK



61 LW 4393



payee, it takes imagination to conceive of instances in
which this p^o\^Slon will ever apply. And the commentary
majtes it dear that even when compensation is granted
it should be granted stingily — only for costs "directly and
unavoidably caused by the violation." Id., at 54. As seen
from the viewpoint of the victim of an abusive litigator,
these resnsions convert Rule U from a means of obtaining
compensation to an invitaLion to throw good money after
bad. The net effect is to decrease the mcenUve on the
part of the person best situated to alert the court to
perversion of our civil justice system.

I would not have registered this dissent if there were
convincing mdicauon that the current Rule 11 regime is
ineffective, or encourages excessive satellite litigation. But
there appears to be general agreement, refleaed in a
recent report of the advisorj- committee itself, that Rule
11, as wntten. basically worics. According to that report,
a Federal Judicial Center survey showed that 80?c of
distnct judges beUeve Rule 11 has had an overall positive
efTect and should be retained in its present form. SSTc
beheved the Rule had not impeded development of the
law. and about 759c said the benefits justif>- the expendi-
ture of judicial time. See Interim Report on Rule 11,
Advisory Committee on Civil Rules, reprinted m G. Vairo.
Rule 11 Sanaions: Case Law Perspectives and Prevenuve
Measures, App. 1-S-MO i2d ed. 1991). TVue. many
lawvers do not like Rule 11. It may cause them finanaal
habihtv. It may damage their professional reputauon in
front of important cbents. and the cost-of-btigation savings
It produces are savings not to lawyers but to litigants.
But the overwhelming approval of the Rule by the federal
distnc: judges who daily grapple with the problem of
litigation abuse is enougr. to persuade me that it should
not be gutted as the proposed revision suggests.'

II

Discovery Rules

The proposed radical reforms to the discovery process
are potenliaily disastrous and certainly premature — partic-
ularlv the imposition on b-gants of a continuing duty to
disclose to opposing counsel, without awaiting any request,
various information "relevant to disputed facts alleged
with parcicuianty " See Proposed Rule 26(aMlMAi.
(aflnB). lef 1). This proposaJ is promoted as a means of
reducing the unnecessary expense and delay tnat occur m
the present discovery reg-.ne But the duty-to-disclose
regime does not replace the current, mucb-cnticized
discovery process, rather, i: adds a further layer of discoi -
en,. It will likely increase the discovery- burdens on
distnc: judges, as parties Ungate about what is "relevant"
to "disputed facts." whether those facts have been alleged
with sufBaenl particuiar.ty. whether the opposing side has
adequately disclosed the required information, and wheth-
er 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
earlv inception of the duty to disclose and the severe

' I do nol disagree with the proDosai lo ma&e law firms liable for an
atlomev's miaconauct under the R-jle. see Proposed Rule Ihc). or with
the oroposaJ that Rule II saner. -r,s oe applied when ciaims in pleadings
that at one tune were nol in \TO,a;ion of the rule are pursuea alter it is
evident that thev lack suppcrt, see Proposed Rule lllb)-, Advisorv-
Comoiittee Notes to Proposea Ru.e 11. p. 51.

It IS cunous mat the proposes rj.e regarding sanctions for discoverv-
abases ^rquires sancr.ons. and £ce<r.~ia; \ recorr.menos nnanriaj sanctions
anc c=n:nensat:cn to the mcv~.r.c cart\- See Proposed Ruie 37,aM4KA.
• c 1 - Nc. eip:ar.ar.-r. f.-r t.le :-z:~^r.tr-y is giver.



penalties on a party who fails to disgorge m a manner
consistent with the duty. See Proposed Rule 37(c) (prohib-
iting, in some circumstances, use of witnesses or mforma-
tion not voluntarily disclosed pursuant to the disclosure
duty, and authorizing divulgement to the jury of the
failure to disdosel.

The proposed new regime does not fit comfortably
within the Amencan judiaal sjretem, which relies on
adversarial litigation to develop the facts before a neutral
decisionmaker By placing upon lawyers the obligation to
disclose information damaging to their clients— on their
own initiative, and m a context where the lines between
what must be disclosed and what need nol be disdosed
are not dear but require the exercise of considerable
judgment — the new Rule would place intolerable strain
upon lawyers' ethical duty to represent their clients cind
not to assist the opposmg side. Requiring a lawyer to
make a judgment as to what informauon is "relevant to
disputed facts" plainly requires him to use his professional
skiUs m the service of the adversary See Advisory
Comnuttee Notes to Proposed Rule 26, p. 96.

It seems to me most imprudent to embrace such a
radical alteration that has not, as the advisory committee
notes, see id., at 94. been subjected to any significant
testing on a local level. Two early proponents of the duty-
to-disclose regime (both of whom had substantiaJ roles m
the development of the proposed rule — one as Director of
the Federal Judicial Center and one as a member of the
advisory committee) at one time noted the need for such
study prior to adopuon of a nauonal rule, Schwarzer, The
Federal Rules, the Adversary Process, and Discovery
Reform. 50 U. Pitt. L, Rev 703. 723 (1989); Brazil, The
Adversarv Character of Civil Discovery: A Cntique and
Proposals' for Change, 31 Vand. U Rev, 1295. 1361 (1978),
More importantly. Congress itself reached the same
conclusion that local experiments to reduce discovery costs
and abuse are essential before major revision, and in the
Civil Justice Reform Act of 1990, Pub. L, 101-650, §§ 104.
105. 104 Slat. 5097-5098. mandated an extensive pilot
program for distnct courts. See also 28 U. S. C. §§471.
473(a)(2)(C). Under that legislation, short-term eipen-
menls relating to discovery and case management are to