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

last at least three years, and the Judinal Conference is
to report the results of these expenmenls to Congress,
along with recommendations, by the end of 1995. Pub.
L. 101-650. §105. 104 Stat. 5097-5098. Apparently, the
advisory committee considered this timetable schedule too
prolonged, see Advisorv- Conunittee Notes to Proposed Rule
26. p. 95, preferring instead to subject the entire federal
judiaal system at once to an extreme, costly, amd essen-
tially untested revision of a major component of aval
litigation. That seems to me unwise. Any major reform
of the discovery rules should await completion of the pUot
programs aulhonzed by Congress, espeaally since courts
already have substantial discretion to control discovery.
See Fed. Rule Civ J>roc, 26,

I am also concerned that this revision has been recom-
mended m the face of nearly umversal cnucism from
every conceivable sector of our judical sretem, mduding
judges, practitioners, Utigants, academics, public interest
groups, aind national, state and local bar and professional
assoaations. See generally Bell. Vamer. & Gottschalk.
Automauc Disdosure m Discovery — The Rush to Reform.



'For the same reason, the proposed presumptive limits on depositions
and inLerragatones. see Prcposed Rules 30, 31. and 33, should not be
imD,ementec



442



61 L'W 43«>t



The United States LAW WTEK



4-27-93



27 Ga. L. Rev. 1. 28-32, and tm. 107-121 (1992). Indeed,
after the proposed rule in essentially its present form was
published to comply with the notice-and-comment reqtiire-
ment of 28 U. S. C. § 2071(b), pubhc criticism was so
severe that the advisory committee announced abandon-
ment of Its duty-to-disclose regime (in favor of limited
pilot experiments), but then, without further pubUc
comment or explanation, deaded six weeks later to
recommend the rule. 27 Ga. I- Rev., at 35.



Constant reform of the federal rules to correct emerging
problems is essential. JUSTICE WHITE observes that
Justice Douglas, who in earlier years on the Court had
been wont to note his disagreements with proposed



changes, generally abstained &om doing so later on,
acknowledging that his expertise had grown stale. Ante,
at S. Never having speaalized m trial pracbce, I began
at the level of expertise (and of acquiescence in others'
proposals) with which Justice Douglas ended. Both
categories of revision on which I remark today, however,
seem to me not matters of expert detail, but rise to the
level of prmaple and purpose that even Justice Douglas
in his later years continued to address. It takes no expert
to know that a measure which eliminates rather than
strengthens a deterrent to frivolous litigation is not what
the times demand; and that a breathtakingiy novel
revision of discovery practice should not be adopted
nationwide without a trial run.

In the respects described, I dissent from the Court's
order.



443



Appendix 25. — Letter From John P. Sweeney, Esq., Miles &
Stockbridge, to Hon. William J. Hughes, Chairman, June 25,
1993



MrLKS 8c Stockbhidoe

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SASTON. M AllYUNO aieoi TELEPHONE *10-Ta7-e404 HOCKVILLE. MAJIVUND aOOSO

FAX 4103aB-3700

liaao RANDOM HILLS ROAD «00 WASHWOTON AVENUE

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WASHINOTON. DX:. acooo



June 25, 1993



The Honorable William J. Hughes,

Chairman
House Subcommittee on Intellectual Property

& Judicial Administration
207 Cannon House Office Building
Washington, D.C. 20515-6216

Attention: Edward O'Connell, Esquire

Re: Proposed Changes to the Federal Rules of Civil
Procedure

Dear Chairman Hughes:

Please consider this letter as my opposition to the proposed
amendments to Rule 26(a)(1) of the Federal Rules of Civil
Procedure. This rule should not be adopted for the following
reasons :

1. The proposed standard for disclosure is an amorphus
one. This lack of clear standards for disclosure will
not result in an acceleration in the exchange of basic
infonr.aticn or the elimination of paperwork. Rather,
the rule will have the opposite effect — more, not
less litigation. This litigation will center around
the meaning of the statute and its terms. For
instance, the term "relevant" lacks defined meaning,
and will be the springboard for countless discovery
hearings. While giving little definitive guidelines as
to the limits of the required disclosure, the rule also
blurs the distinction between privileged and
nonprivileged information. Due in large part to the
absence of definitive standards and protections, a
majority of the legal community opposes the proposed
amendment .

2. The proposed amendment conflicts with the very nature
of the adversarial justice system. The justice system



444



is premised on adversity between litigants. Courts and
juries rely on this adversity to sharpen the
presentation of issues and facts.

In the course of the adversarial discovery process,
disputes involving work product and privileges arise.
The proposed rule obliterates fundamental distinctions
between work product and other documentation or
information and gives the lawyer little to no guidance
as to what is privileged. This will box attorneys into
ethical dilemmas since it requires a disclosure of all
materials which might even remotely be relevant to a
party's case.

The proposed standard will increase the number of
frivolous lawsuits by paving an avenue for
"speculators" to thrive. Normally, individuals will
not file complaints until they possess information to
assist them in the case. Under the proposed disclosure
rule, however, individuals may speculate as to whether
their claims are valid. These individuals will be able
to file a claim in the hopes that the opposing party
will have some relevant information.

The proposed amendment will require disclosure even in
cases where it may not be necessary or appropriate.
Almost 70% of all cases settle before going to trial.
This includes a significant number of cases in which
discovery is not undertaken before the case is settled.
By requiring parties to engage in early disclosure, the
proposed amendment will increase the cost of
litigation .

The proposed amendment also is likely to increase
motion practice and satellite litigation over
disclosure. Since the disclosure standards are unclear
and not well defined, advocates may be tempted to
withhold ."> greater amount of information than under
current standards, thereby increasing the use of
motions to compel production, and other procedures
which would challenge the disclosure or nondisclosure
of certain items, documents, and materials. This would
succeed only in increasing litigation costs.

There already are reforms under way as a part of the
Civil Justice Reform Act of 1990 (CJRA). The proposed
amendment interferes with the CJRA plans, making it
difficult, if not impossible, to assess the



445



effectiveness of any possible improvements under the
Act.

I respectfully request the House Subcommittee on
Intellectual Property & Judicial Administration to delete
proposed Rule 26(a)(1) from the proposed amendments to the
Federal Rules of Civil Procedure. Thank you for your



consideration



Sincerely,
John P. Sweeney



JPS/mlp



446



Appendix 26. — Letter From George A. Riemer, Associate Exec-
utive Director and General Counsel, Oregon State Bar
(With Attachment), to Hon. William J. Hughes, Chairman,
June 29, 1993




*



CD



mw



5200 S >X' Meadovv-s Road. PO Box 16H9. Like Oswl-jio. Oregon 9~0.'5=i-08S9
( 503 ) 620-0222 or WATS l-.S0O-i52 82t>0. F.V<: ( 503 ) CkSh- 1 Mrb



June 29, 1993



jiji_ 8 1993
Sub on Courts

The Honorable William J. Hughes
241 Cannon House Office Building
Washington, D.C. 20515

Re: Oregon State Bar Resolution Opposing the Proposed Changes to
Federal Rules of Civil Procedure 1 1 and 26

Dear Congressman Hughes:

As you may know, on April 22, 1993, the Supreme Court submitted to
Congress, proposed changes to the Federal Rules of Civil Procedure. The rule
changes will go into effect on December 1, 1993, unless Congress passes
legislation modifying or eliminating the proposed changes. That is, if Congress
does nothing, the proposed changes will becor.id law.

There is strong opposition by Oregon lawyers to the proposed changes to
Rule 26, particularly with regard to the Rule 26 changes calling for early
"automatic disclosure" of witnesses and documents in civil lawsuits. There is
similar opposition to the proposed changes to Rule 1 1 .

The Oregon State Bar is a statutorily created professional association; every
practicing attorney in the state of Oregon is a member of the Oregon State Bar. At
its June 19 meeting, the Oregon State Bar Board of Governors passed a resolution
formally opposing the proposed changes to Rules 1 1 and 26. A copy of the
resolution is enclosed.

Note that the resolution "urges che Congress to enact the necessary
legislation, pursuant to 28 USC § 2074, so that the proposed changes to Federal
Rules of Civil Procedure 1 1 and 26 do not become law." We are writing to you so
that you know of the Oregon State Bar's position, and we would ask that you
assist in the effort to "undo" these proposed changes to Rules 1 1 and 26.

If you have any questions, you should contact James L. Hiller, a member of
the Oregon State Bar's Federal Practice and Procedure Committee. Mr. Hiller has



447



been tracking these proposed changes for the Bar, and he can be reached as
follows:

James L. Hiller

Lane Powell Spears Lubersky

520 S.W. Yamhill Street

Suite 800

Portland, OR 97204-1383

Telephone: (503) 778-2104

Telefax: (503-224-0388

Thank you for your attention to this matter.

Very truly yours,

George A. Riemer
Associate Executive Director
and General Counsel

Enclosure



448



^«'



JREGOr

STATE

BAR



5200 S.W Meadows K(i:ici 1' O Box 1689. Uikc 0>«c.co, Orciion 9703=i-0.S89
(503) ()20-0222i)r WATS l-800-o2-S2()0. TAX (SO^) (iS 1-1366



OREGON STATE BAR RESOLUTION OPPOSING THE PROPOSED
CHANGES TO FEDERAL RULES OF CIVIL PROCEDURE 1 1 AND 26

The Oregon State Bar, through its Federal Practice and Procedure Connmittee, has
reviewed the proposed changes to Federal Rules of Civil Procedure 1 1 and 26,
transmitted on April 22, 1993 by the United States Supreme Court to the
Congress of the United States. The Board of Governors of the Oregon State Bar
considered a report from the Bar's Federal Practice and Procedure Committee
regarding the proposed changes, at its June 19, 1993 meeting.

The Board of Governors of the Oregon State Bar opposes the proposed changes to
Rule 26, particularly the automatic disclosure requirements of proposed rule
26(a)(1). The reasons for the Board's opposition are well-stated and included in
Justice Scalia's dissent to the adoption of the proposed rule amendments, 146
FRD 507 (April 22, 1993). These reasons include:

1) Automatic disclosure will not reduce discovery expense and delay, but rather
will increase discovery burdens on practitioners, litigants and courts, alike.

2) Automatic disclosure will place intolerable strain upon a lawyer's ethical duty
to represent his or her client and not to assist the opposing side.

3) Automatic disclosure should be subjected to significant testing on the local
level before it is adopted nationally.

The Board of Governors of the Oregon State Bar also opposes the proposed
changes to Rule 1 1. Again, the reasons for the Board's opposition are well-stated
and included in Justice Scalia's dissent. In particular, the proposed Rule 1 1
amendments will eliminate a significant and necessary deterrent to frivolous
litigation.

The Board of Governors of the Oregon State Bar, therefore, urges the Congress to
enact the necessary legislation, pursuant to 28 USC § 2074, so that the proposed
changes to Federal Rules of Civil Procedure 1 1 and 26 do not become law.



449



Appendix 27.— Letter From Frank P. Bramble, President and
Chief Executive Officer, MNC Financial, to Hon. Willl\m
J. Hughes, Chairman, June 23, 1993



AINCf'nancal



CRANK ° BRAMBLE

PRESIDENT AND CHIEF EXECUTIVE Cr.ZEP



June 23, 1993

VIA FEDERAL EXPRESS

The Honorable William J. Hughes, Chairman
House Subcommittee on Intellectual

Property and Judicial Administration
207 Cannon House Office Building
Washington, D.C. 20515-6216

Attention: Edward O'Connell, Esquire

Re: Amended Rule 26(a) il)

Federal Rules of Civil Procedure

Dear Congressman Hughes:

This letter is to record the very strong opposition of the
bank holding company, MNC Financial, Inc. and its subsidiaries
(including, but not limited to Maryland National Bank, American
Security Bank and Virginia Federal Savings & Loan - hereinafter
referred to collectively as "MNC") , to Amended Rule 26(a) (1) of the
Federal Rules of Civil Procedure (hereinafter "Amended Rule
26(a)(1)"). In certain kinds of cases. Amended Rule 26(a)(1) will
impose unnecessary and significant burdens and expenses on MNC. In
all cases. Amended Rule 26 ^a) (1) will create an ethical dilemma.
It is also anticipated that Amended Rule 26(a) (1) will create new
types of discovery disputes.

On the other amendments to the Federal Rules of Civil
Procedure that are currently before the subcommittee, MNC takes no



MNC FINAMCIAL !\'C "- '-^-.il "'zz~ -Z 53.' â– 556 2'l-"'.'0f^E VD:'2:3'r5c



450



position. Some of the amendments will probably be beneficial and
some of the amendments may not. Any problems presented by the
other amendments are, however, totally overshadowed by the problems
that Amended Rule 26(a)(1) will engender. Consequently, MNC will
limit its comments to Amended Rule 26(a) (1) .

MNC would emphasize that it opposes Amended Rule 26(a) (1) only
after careful consideration. MNC is a significant user of the
courts, mostly as a plaintiff, but to a lesser extent as a
defendant. MNC is, therefore, keenly aware of the litigation
process, and knowledgeable about the issues that Amended Rule
26(a) (1) intends to address.

One issue obviously concerns the expenses and burdens of
discovery. Admittedly, the purpose of Amended Rule 26(a) (1) is
laudatory. It is intended to streamline litigation and to reduce
discovery disputes. See Committee Notes. MNC is not aware,
however, of any empirical data that indicates the efficacy of
Amended Rule 26(a)(1) in making discovery less expensive or less
burdensome .

Based upon its experience as a party to many hundreds of
lawsuits each year, MNC can state that Amended Rule 26(a) (1) will
make discovery more burdensome and expensive. These burdens and
expenses will be borne more by litigants such as MNC, rather than
by attorneys' or even the courts. MNC hopes, therefore, that its



'It is interesting to note that many commentators have
characterized the opposition to Amended Rule 26(a) (1) as that of
"entrenched attorneys" who see the amended rule as a threat to
their fees. This type of commentary is only sensational and cannot
withstand any rigorous scrutiny, as the Subcommittee should



451



comments and the comments of other major litigants will be given
sufficient weight by the Subcommittee and by Congress.

MNC respectfully directs the Subcommittee's attention to the
breadth and depth of the opposition to Amended Rule 26(a) (1) .
Further evidence of the opposition to prediscovery disclosure can
be found in the recent events that transpired in Maryland.
Amendments similar to Amended Rule 26(a) (1) concerning prediscovery
disclosure, were proposed for the Maryland Rules of Civil
Procedure. Comments" from twenty- seven (27) different individuals
and organizations were submitted to the Maryland Court of Appeals.
Not one comment supported the proposed amendments on prediscovery
disclosure as drafted. Only one comment clearly endorsed the
concept of prediscovery disclosure as a rule of general
application. This kind of opposition to prediscovery disclosure
clearly shows that implementation of Amended Rule 26(a) (1) is not
appropriate at this time.

By way of constructive proposal, MNC urges Congress to await
a more thorough evaluation of the data that is being generated
around the country in a number of pilot/experimental programs that
are currently under evaluation in various United States district
courts. Many districts are attempting to implement various types
of case management plans, some of which contain some sort of pre-



recognize. If anything, avaricious attorneys should welcome
Amended Rule 26(a) (1) because it will create expensive types of new
discovery disputes.

-A copy of the proposed amendments to the Maryland discovery
rules, along with the comments that were submitted, accompany this
letter in a three-ring binder.



452



discovery disclosure requirements similar or identical to Amended
Rule 26(a) (1) . These programs are in the preliminary stages. It
may be that some sort of pre-discovery disclosure is workable, but
Amended Rule 26(a) (1) promises to be more harmful than helpful.

To explain its position more fully, MNC endorses the statement
of Alfred W. Cortese, Jr. submitted to the Subcommittee on behalf
of a coalition of groups opposed to Amended Rule 26(a) (1)^. MNC
also emphasizes the following points.

Amended Rule 26(a) (1)
Will Impose Unnecessary and
Significant Burdens.

It has been MNC's experience over the past few years that many
claims are made for the purpose of creating a heavy discovery
burden, which then acts as leverage to extort a settlement. Since
Amended new Rule 26(a) (1) will unfairly increase the costs and
burdens of litigation in certain cases, it will only exacerbate
that extortion factor. This by-product of Amended Rule 26(a) (1)
alone is sufficient to overcome any possible benefit.

Another major concern to MNC is that Amended Rule 26(a) (1)
will result in MNC having to incur significant costs and expenses -
in time, effort, and money - in gathering data and documents for



^Mr. Cortese' s statement of June 16, 1993 was submitted to this
Subcommittee on behalf of the Business Roundtable Lawyers
Committee, the Chamber of Commerce of the United States, the
National Association of Manufacturers, the American Association of
Railroads, the American Automobile Manufacturers Association, the
American Banker's Association, the Product Liability Advisory
Council, Inc., the Defense Research Institute, the Federation of
Insurance and Corporate Counsel, the International Association of
Defense Counsel, and Lawyers for Civil Justice.



453



prediscovery disclosure, when a claim being asserted against MNC is
worthless or frivolous or both. Requiring MNC, or any party, to
engage in a discovery process, when no legally cognizable claim has
been asserted, is antithetical to the spirit and letter of Rule 1,.
Fed. R. Civ. Pro. Rule 1 states: "They [the Federal Rules of Civil
Procedure] shall be construed to secure the just, speedy, and
inexpensive determination of every action. " (emphasis added)

In those cases where the legal sufficiency of the claim is
challenged by a preliminary motion. Amended Rule 26(a) (1) may
complicate the case or increase unjustifiable expenses and burdens,
rather than simplify the case or decrease expenses. Admittedly,
Amended Rule 26(a) (1) permits a modification to the pre-discovery
disclosure requirement by way of stipulation or court order. It is
clear, however, that the tenor of all the amendments is to
accelerate discovery. Because of this general orientation of the
amendments, a judge may be loath to delay prediscovery disclosure
except in the most egregious circumstances, which is not what
judges generally do now* and is hardly an inexpensive way to



^Under the existing Rules of Federal Civil Procedure, courts
usually delay discovery if the legal sufficiency of the Complaint
is seriously challenged. See Rutman Wine Co. v. E. & J. Gallo
Winery . 829 F.2d 729, 738 (9th Cir. 1987) (purpose of Rule 12 (b) (6)
is to enable defendants to challenge legal sufficiency of complaint
before having to incur the expense of discovery) ; Greene v.
Emersons Ltd. . 86 F.R.D. 66, 73 (S.D.N.Y. 1980), aff 'd . Kenneth
Leventhal & Co . v. Joyuer Wholesale, Co. . 736 F.2d 29 (2d Cir.
1984) (Rule 12(b) (6) intended to allow a defendant to defeat a claim
as a matter of law without having to provide discovery) ; Havoco of
America Ltd. v. Shell Oil Co. . 626 F.2d 549, 553 (7th Cir. 1980)
("[I]f the allegations of the complaint fail to establish the
requisite elements of the cause of action, our requiring costly and
time consuming discovery and trial work would represent an
abdication of our judicial responsibility.").



454



resolve the action within the meaning of Rule 1, Fed. R. Civ. Pro.
Further, a party seeking to force a settlement by driving up the
costs of the proceedings is unlikely to stipulate that discovery
should wait until the court rules on a pending Motion to Dismiss.

Amended Rule 26(a) (1)

Will Create an

Ethical Dilemma.

An attorney's obligation should be to protect his clients'
interests within the bounds of professional responsibility.
Amended Rule 26(a)(1) subtly, but significantly alters that
relationship. Amended Rule 26(a) (1) would require the attorney not
only to represent his client, but affirmatively to inform the
opposition of how the attorney intends to accomplish that
representation. It would require MNC's attorneys to identify those
persons and documents that contain their theory of the case. This
is a radical departure from historical discovery practices.

Ordinarily, one party asks for documents or information from
the opposition, which the requesting party considers to be
relevant. By contrast. Amended Rule 26(a)(1) requires the
responding party to identify everything that is relevant to its own
theory of the case. That is a materially different requirement.
It establishes a process that is at odds with the attorney's
obligation to his client. It is a process that is at odds with the
work product doctrine. It encourages an attorney to delay his
preparation of the case, because he cannot be required to disclose
documents or information about a factual dispute until he



455



determines that the alleged fact is disputed.

Amended Rule 26(a) (1)
Will Create New Types
of Discovery Disputes.

It is anticipated that Amended Rule 26(a) (1) will not resolve
discovery disputes. Rather, MNC anticipates that Amended Rule
26(a) (1) will create new types of discovery disputes.

Amended Rule 26(a) (1) requires the disclosure of documents or
persons with information, "relevant to disputed facts alleged with
particularity in the pleadings." The definition of "relevance" is
unclear. It is also not at all clear what constitutes a "fact"
alleged with enough "particularity" so as to require disclosure if
the "fact" is disputed. Generally, notice pleading is all that is
required.

The historical practice for discovery is to permit inquiries
into any area that is reasonably calculated to lead to the
discovery of admissible evidence. See Rule 26(b) (1) Fed. R. Civ.
Pro. It is not yet )cnown whether "relevant" is meant to be broader
or narrower than the traditional scope of discovery. Similarly,
even if "relevant" is meant to be broader or narrower than
traditional discovery, the question is - how much broader or how
much narrower?

Disputes over the meaning of these new terms will inevitably
arise during the course of a lawsuit. These disputes will be in
addition to traditional discovery disputes. This is precisely the
opposite effect of what is nominally intended by the drafters of
Amended Rule 26 1 a: .i; .



456



MNC's Proposal

At this point in time. Congress should not allow such a
significant change as Amended Rule 26(a) (1) to be implemented. If
a requirement for pre-discovery disclosure is feasible and
meritorious, the evidence of that feasibility and merit will emerge
shortly from the evaluations of the experimental /pilot programs
that are currently under way in the U.S. district courts under the
Civil Justice Reform Act of 1990.' There is no compelling reason
why such a radical change is immediately needed for the federal
discovery rules, particularly when the practical feasibility of
mandatory prediscovery disclosure is untested.

Amended Rule 26(a) (1) contains many significant problems. If
those problems can be overcome, as demonstrated by the pilot
programs in the U.S. district courts, then a suitable rule with a