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

proven record can be implemented. Amended Rule 26(a) (1) , however,
is not suitable and should not be allowed to become effective on
December 1, 1993.

Respectfully submitted, /

frank P. Bramble

President and Chief Executive Officer

MNC Financial



'Pub. L. No. 101-050, 104 Stat. 5089 (1990)



457



Appendix 28.— Letter From Harvey J. Reed for David A.
Brune, General Counsel, Baltimore Gas and Electric, to
Hon. Willl\m J. Hughes, Chairman, July 1, 1993



Ktotl \/ CL' I BALTIMORE

I GAS AND
JUL 8 1993 _ * ELECTRIC



Sub on Courts charles center • p. o. box uts • Baltimore. Maryland 21203



OAVIO A BRUNE

CCNCRAL Counsel

July 1, 1993



House Subcommittee on Intellectual Property

and Judicial Administration
207 Cannon House Office Building
Washington, D.C. 20515-6216
Attention: Edward O'Connell, Esquire

Re: Proposed Rule 26(a)(1) Disclosure

to the Federal Rules of Civil Procedure

Dear Mr. O'Connell:

Proposed Rule 26(a)(1) which requires automatic
disclosure of all witnesses and documents "relevant to dispute
facts" places an unreasonable burden on the parties to the
litigation, particularly corporate defendants. As you are aware,
many actions which are filed have not been properly investigated
to determine the merits of the suit. A number of these actions
have little or no merit. Defendants are often able to dispose of
such cases with a Motion to Dismiss, or after taking a deposition
or two, file a successful Motion for Summary Judgment.

Rule 26(a)(1) (Disclosure) would dramatically increase

XXC^gauxOn c:Xpcni>eS , luaKC ^AX^CGVciry luO^c CUiTwAeilSCruC: ^iiv..

ultimately, substantially slow down the judicial process by
requiring the parties to determine what is "relevant". This
determination will lead to challenges to the party's
discretionary interpretation of relevance. The opposing party
will file additional motions requesting interpretation and even
sanctions to address the other side's determination of relevancy.
Disclosure would also result in ethical questions being raised as
to the attorney-client confidential relationship as well as to
attorney work-product privilege, particularly with in-house
staffs. In-house counsel are required to render opinions,
participate in discussions and help direct corporate policy in a
variety of settings. Those opinions may well be "relevant" to
disputed facts. To disclose such thought processes would reveal
to an opponent a level of factual inquiry or legal reasoning that
the opponent would never have considered or litigated on its own.



458



Consequently, these disclosures would expand the scope of the
matter litigated instead of limiting it. Work product was
intended to protect and promote the thought process of opposing
attorneys. Disclosure would force the early revealing of an in-
house counsel's approach to corporate policies and procedures.

In addition, the disclosure standards are vague and
unclear. Rather than address the present abuses of discovery,
this proposed rule would further complicate the procedure.

Finally, as pointed out above, requiring parties to
"disclose" in all cases seems to be unnecessary. Many cases are
presently resolved quickly and inexpensively without the
necessity of extensive discovery. In the more complex cases,
extensive discovery is both needed and undertaken by the parties

While the intention to address discovery abuse is
laudable, we believe the proposed disclosure rule would not
accomplish that goal. Therefore, we oppose the adoption of
proposed Rule 26(a)(1) Disclosure. We are all committed and
eager to improve the judicial system to the greatest extent
possible, but this measure fails to do so and, in fact, is a step
in the opposite direction.

We appreciate the opportunity to comment on the
proposed rule and hope you find our comments constructive.

Very truly yours,

'I

-n: : 1 ' (

HJR : dmn



459



Appendix 29.— Letter From Charles E. Fenton, Vice President
AND General Counsel, Black & Decker, to Hon. William J.
Hughes, Chairman, June 15, 1993



-'. =.3'.k -J Zszir -■.■'::;• :■ Chiflti £ Fntoii

""â–  :3;: .ri:a nr.3C > '5 -'ESiceni anc oeicj^ ccj^ic

'.AT' \'y..i:::'2f,i:
-:r ''r. .jV -



ELACKSlDECECER



June 15, 1993



The Honorable William J. Hughes, Chairman
House Subcommittee on """ntellectual Property

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

Attention: Edward O'Connell, Esq.

Dear Chairman Hughes:

We urge rejection of proposed Rule 26(a)(1) of the
Federal Rules of Civil Procedure on the grounds that it
imposes an unnecessary burden on defendants in frivolous cases
that should be disposed of on motion at minimum expense, and
in serious cases, will give rise to a new generation of
discovery disputes over its application-
Thank you for your consideration.



Sincerely,
Charles E. Fenton



CEF/dg
81-258 (472)

o



BOSTON PUBLIC LIBRARY



3 9999 05983 026 3



ISBN 0-16-045950-8




780160




'459504



90000