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

client

As noted, the national standard does not require disclosure of any matters that
have not long been discoverable.® Arguments that the disclosure requirements will
somehow impinge on the attorney-client relationship take two forms: first, that an
adversary — whether deliberately or negligently — may not ask for some or any of the
information covered by the disclosure requirement; and second, that the attorney's
role in helping to identify potential witnesses and types of documents which are
"relevant" involves professional skills that should not result in benefiting an adver-
sary.

In the situation where a conscious decision would be made by an adversary not
to seek information subject to the disclosure requirement, the parties can, under the
amended rules, agree that no such disclosure be made.

The more likely situation involves the negligent failure of an adversary to seek
such information, typically by using words that provide the responding party with
an arguable basis to avoid disclosing clearly relevant information. The desire of liti-
gants to benefit from such errors is understandable, just as when litigants under
common law pleading were more than happy to take full advantage of technical
rules of pleading.

In fact, most of these errors are ultimately corrected — though with extra expense
and delay — as the case proceeds towards trial. Through motions to compel or supple-
mental discovery requests, the information needed to fairly prepare for trial is usu-
ally obtained. In the few cases where this does not occur, there is a substantial risk
of unnecessary confusion at trial or an unjust result, contrary to the spirit of Rule
1. We do not believe the attorney -client relationship is undermined by requiring the
disclosure of core information needed by the parties to orepare properly for trial.

To be sure, lawyers will be using their professional skills in helping clients to
identify information subject to the disclosure requirements. This they do now, when
assisting in the preparation of objections and responses to formal discovery reauests.
They will not be called upon to do more than they have had to do under the former
rules when similar interrogatories were asked, objections made, and an order en-
tered requiring answers. What the amended rule does is to eliminate these three
steps wiUi respect to the four types of information described in Rule 26(aXl), elimi-
nating the cost and delay such procedures have regularly added to the litigation
process.

The objection that criticism is widespread and that changes in the published draft
should have resulted in republication and a new period for comments

Critics emphasize the extent of opposition from the bar and regular litigants. I
do not minimize this opposition or fault the principal antagonists for their zeal and
success in corralling support. The rule-making process must not, however, become
captive to populist appeals or subjected to plebiscites, particularly when considering
amendments that involve a balancing of competing interests. The Advisory Commit-
tee and the Standing Committee — each composed of judges, lawyers, and academ-
ics — must use their collective experience and judgment in evaluating procedures for
use in a wide variety of civil cases in federal court, which afTect plaintiffs, defend-
ants, judges, and members of the public, not all of whom will see eye-to-eye on a
given issue. We read or heard, and considered, comments from hundreds of individ-
uals and groups, incorporating into the rules many of their suggestions. That many,



^There is one part of the disclosure requirement* which may be viewed as expanding the
scope of discoverable matters. Courts presently are divided as to whether testifying experts can
be required to produce otherwise privileged or protected materials that they have considered in
forming their opinions. Rule 26(aX2) resolves this conflict, adopting the position that informa-
tion considered by a testifying expert should be discoverable and that accordingly counsel should
be cautious in furnishing their experts with materials they are unwilling to have disclosed.



23

whose views were solicited but not altogether adopted, continue to advocate their
earlier positions is not surprising.

It is worth repeating that 23 of the 41 CJRA plans adopted as of June 1, 1993,
include some form of early disclosure requirement and that many of the remaining
53 districts are planning to do so. These plans have been formulated through the
deliberative efforts of diverse groups of judges, lawyers, litigants, and members of
the public seeking to put aside their parochial or partisan views in the interest of
reducing costs and delays in civil litigation.

Some critics have suggested that the various changes made by the Advisory Com-
mittee or Standing Committee to the published amendments to Rules 26-37 — or at
least the provisions the critics objected to — should have been republished, with an
additional period for comments. There were a number of modifications made — for
the better, we believe. These came as a result of suggestions made during the com-
ment period, and none had the effect of enlarging the scope of the change to the
existing rules or doing more than altering the specific language of concepts con-
tained in the published draft. Republication was clearly not required by the applica-
ble statutes or the procedures of the Judicial Conference that govern the rule-mak-
ing process.'' To adopt the argument that under such circumstances republication
should be required would ultimately result in greatly diminishing the value of pub-
lic comments, creating a major disincentive for making improvements suggested
during the comment period.

Some mention should be made regarding the actions of the Supreme Court in
adopting these amendments, and particularly the dissent of Justices Scalia, Thom-
as, and Souter, the concurrence of Justice White, and the transmittal letter of the
Chief Justice. I take quite seriously, and have attempted to address, the various
points made in the dissent. The institutional difficulties faced by the Supreme Court
in fulfilling its statutory role respecting amendment of federal rules were high-
lighted in Justice Whites concurrence and partly echoed, in more muted tones, oy
the Chief Justice in his transmittal letter. It should be noted that the same caveat
from the Chief Justice was included in his letters transmitting changes in other sets
of federal rules, whose adoption had provoked no dissent. The role of the Supreme
Court in the rule-making process is tne subject of legislation, which Congress may
at any time reconsider. I would not, of course, presume to speak for the Supreme
Court on this subject.

The objection that any disclosure requirements should await the results of local ex-
perimentation under the CJRA

This objection has two aspects: one has substance and is arguably meritorious; the
other, as I view it, should be summarily rejected.

To the extent critics say that, because of the statutory requirement for a critique
of local experiments under CJRA plans, all recognition at this time in the national
rules of early disclosure should be eliminated or suspended, they are wrong. I am
aware of suggested legislation that would, through deletion of Rule 26(aXl) and
rewording ofother portions of the rule, eliminate all references to initial disclosure.
This would be a very bad mistake. At least in some fashion, the rules that become
eflective on December 1, 1993, must give legitimacy to initial disclosure require-
ments in the CJRA plans, which all districts must adopt by that same date.

As noted, 23 of the districts have already included variants of early disclosure as
part of their CJRA plans, and many others are planning to do so. Disclosure of core
information without going through the process of interrogatories, objections, and or-
ders compelling answers is — whatever the debates over scope, timing, etc. — a matter
that must be explored and tried as a part of the CJRA mandate. Without some
modification in tne Rules of Civil Procedure, these experiments will be subject to
unnecessary controversies in which litigants contend that local disclosure require-
ments contravene 28 U.S.C. 2071, and legislative rejection of disclosure require-
ments would doubtless be used as a basis Tor attacking the validity of local disclo-
sure programs. Should legislation be enacted to delete or suspend the provisions for
initial disclosure, it is essential, in order to complement the aims of the CJRA, that
some approval be given for district courts to incorporate disclosure provisions in
their plans.

Some critics no doubt will recognize the critical need that the national rules (or
legislation) authorize local court adoption of disclosure procedures, but urge that,
pending completion of the CJRA experiments, there be such an authorization cou-
pled with provisions deleting or suspending the particular early disclosure format



'It may be noted that the four Justices commenting on the rules did not criticize the process
which led to the submission to the Supreme Court.



24

contained in Rule 26(a)(1). This alternative was seriously considered and, at one
point during the deliberative process, was viewed by the Advisory Committee as the
approach to take. At that stage, new language for Rule 26(aXl) — with complemen-
tary changes in other related rules — was developed that would authorize courts to
adopt early disclosure plans, but without indicating any particular suggested frame-
work for disclosure.

As Justice Scalia and others have observed, the Advisory Committee later
changed its position and returned to a system of prescribing an early disclosure for-
mat, but with explicit authorization for modification by local rule, court order, or
stipulation. Why this reversal?

First, absent any suggested disclosure format in the national rules, too many local
variants would likely emerge, complicating the Congressional mandate to review ex-
perience of courts under their plans.

Second, the particular disclosure provisions now contained in Rule 26(aXl) are eq-
uitable, workable, and potentially beneficial. Given the time and energy expended
in studying the comments regarding early disclosure, the Advisory Committee be-
lieves it should provide the various district courts with the benefit of its best judg-
ment concerning a disclosure procedure.

Third, the success of a disclosure program will depend in part on education of the
bench and bar, and incorporation of disclosure provisions into the national rules,
even though subject to local variation, will facilitate that learning process. As an
aside, I should note that, although few major disputes have thus far erupted in dis-
tricts with disclosure requirements, part of the reason may be that often the parties
have been unaware of their obligations under the local plans.

Though the judiciary was hardly an enthusiastic supporter of enactment of the
CJRA, it is committed to using its best efforts to achieve the laudable goals of that
legislation. It would be a mistake for Congress now to withdraw from the judiciary
some of the tools needed to make that legislation work.

IV. VIDEOTAPED DEPOSITIONS: RULE 30(b)

Let me start on this subject by noting that the amendments relating to
videotaping of depositions are not critical and could be eliminated without afTecting
the other changes in Rules 26-37. We do believe, however, that the changes aflect-
ing recording of depositions will be beneficial, reducing unnecessary court involve-
ment and providing appropriate protection and safeguards for non-stenographic re-
cording of depositions. Properly understood, the changes in Rule 30(b) will not ad-
versely affect court reporters® or the integrity of judicial processes.

If, however, your experience is similar to that of the Advisory Committee, you can
expect to receive thousands of letters complaining of the changes, principally con-
tained in amended Rule 30(b), relating to non-stenographic recording of testimony.
Again, if our experiences are similar, much of this correspondence will be off-target,
erroneously assuming that the amendments are aimed at eliminating court report-
ers from tne recording of trial testimony. The amendments do not jeopardize or af-
fect the role of court reporters during trials, and do not indicate any type of hidden
agenda by the Committee to eliminate court reporters.

There are, however, those — and the Chairman of this Subcommittee may be one —
who, though aware that the amendments relate only to recording of depositions, are
nevertheless concerned, inter alia, over the potential for additional disputes when
depositions are not recorded stenographically.

As a personal note, I want to affirm that I am not, in any way, a foe of court
reporters. Trials before me are recorded by certified, qualified court reporters — typi-
cally using CAT technology, which can be used to rapidly produce written tran-
scriptions — and not by operators relying on audio recording devices. Relatively few
non-stenographic depositions have been used in proceedings over which I was pre-
siding. My secretary of over twenty years, who retired earlier this year, has a hus-
band and son in the court reporting profession, and a second son who formerly was
a court reporter. So far as I observed, none of the other members of the Advisory
Committee wanted to eliminate court reporters, and many of us had experiences
that made us mindful of the problems that can arise when non-stenographic deposi-
tions are used at trial or must be reviewed on appeal.



*Other amendments may adversely afTect court reporters; namely, those calling for a reduc-
tion in the number of depositions and authorizing courts to impose limits on the length of depo-
sitions. So far as I am aware, however, there has been no overt opposition by court reporters
to these provisions. It should be noted that still other amendments, particularly those in Rule
30(e), were made to reduce some of the problems typically faced by court reporters.



25

Amended Rule 30(b} will permit any party to decide whether a deposition should
be recorded stenographically or non-stenographically. A party noticing a deposition
can arrange for stenographic or non-stenographic recording, and any other party,
dissatisfied with that selection, can arrange for another form of recording at its ex-
pense. The parties' decisions will, no doubt, be governed by considerations of cost,
accuracy, and potential utility at trial. The rules include new provisions to assure
the fairness of non-stenographic recordings, and require that a party expecting to
use a non-stenographic recording at trial must provide the court and opposing coun-
sel with a written transcript of the pertinent portions. This latter requirement is
of special value to trial and appellate judges called upon to preview or review such
depositions.

Formerly, non-stenographic recording of depositions required either the parties'
stipulation or the court's approval. Requests for non-stenographic recordings, how-
ever, were routinely granted, unless there were special reasons to deny the request
or, more frequently, disagreements between counsel regarding procedures to be fol-
lowed at the deposition or in preparing a transcript. Most of these disagreements
should be eliminated by the new safeguards incorporated into the amended rule and
the opportunity to arrange for another method of recordings. The court is still avail-
able through a Rule 26(c) motion if serious controversies about recording cannot be
resolved by the parties, but the rule will relieve judges from unnecessary involve-
ment in such matters.

Some have suggested that the opportunity for multiple recordings of depositions
will generate disputes over which recording is the more accurate. This has been a
potential source for dispute under the prior rules, in which authorizations for
videotaped depositions have often been accompanied by a requirement for simulta-
neous recording by a court reporter; but, so far as I am aware, such disputes have
been practically non-existent. There are disputes when evidence is offered about a
deponent's testimony through oral examination of a person present at the deposi-
tion, but there is no reason for the number of these disputes to increase under the
new rules.

The controversy over Rule 30(b) has inappropriately, in my view, raised disputes
as to the relative cost, accuracy, and value of stenographic transcriptions versus
non-stenographic recordings. This is not the time to attempt to resolve this debate.
Rule 30(b) does not favor one form of recording over the other, and leaves counsel
free — subject to court review on motion — to select the particular form they prefer.
With the increasing use by court reporters of equipment incorporating the latest
technological improvements, we can expect their professional, independent services
to be valued by judges and lawyers even more than at present.

V. CONCLUSION

I urge Congress to resist the pressures for legislative intervention and to p>ermit
the rules to take effect on Decemoer 1, 1993, as scheduled.

Should, however, legislation be seriously considered, special care must be taken
in the drafting. Due to the interrelationship of provisions in different rules, or dif-
ferent parts of the same rule, even minor changes can produce inadvertent incon-
sistencies or conflicts.^ If legislation is to be proposed and pursued — and I hope it
will not be — I will be happy to work with the Subcommittee and its staff in an effort
to avoid such drafting errors.

Mr. Chairman and members of the Subcommittee, I thank you for your attention
during this presentation and will be pleased to respond to your questions.

Mr. Hughes. Judge Schwarzer, welcome.

STATEMENT OF WILLIAM W SCHWARZER, SENIOR U.S. DIS-
TRICT JUDGE, U.S. DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, AND DIRECTOR, FEDERAL JUDI-
CIAL CENTER

Judge Schwarzer. Thank you, Mr. Chairman, members of the
committee. I appreciate the opportunity to appear before you.



'For example, to eliminate the controversial provisions relating to non-stenographic recording
of depositions cannot be accomplished merely by rejecting the amendment of Rule 30(b). Rather,
the amendments of both Rule 30(b) and 30(c) would both have to be rejected, accompanied by
the abrogation of former Rule 30(bX2).



26

I should add I appear in my individual capacity. My comments
will be brief and will be limited to the amendments relating to the
discovery process under the rules.

There seems to be wide agreement that the present process
under the discovery rules is not working in a satisfactory manner.
It may not be a problem in every case and it may not be a problem
implicating every lawyer, but the experience generally of lawyers
and judges has been that there is too much discovery, that it be-
comes disproportionate to what is at stake in the lav/suit, and that
it is too adversarial.

Some lawyers contend that that argues for greater involvement
by individual judges, greater judicial control. But the fact is that
judicial time is a very limited resource, and the primary respon-
sibility for this process has been and has to be on attorneys. It is
their responsibility to make the discovery system work.

The amendments to rules 26 and 30 recognize the primary re-
sponsibility of lawyers. Those amendments ask lawyers to do what
could reasonably be expected of them, and that is to disclose core
information in the case without adversary proceedings about that
disclosure, and to focus their discovery so as to avoid unnecessary
depositions and other discovery activity, which is what the early
disclosure is intended to lead to as well as the presumptive limita-
tion on the number of depositions.

Some people have argued that the way to deal with excess dis-
covery is by the use of sanctions. But sanctions, except in extreme
circumstances, tend to be counterproductive.

What amended rule 26 does instead is to take a constructive ap-
proach by mandating an early conference of the lawyers concerning
disclosure and their plans for discovery. And that may be in the
long run the most important contribution that this amendment will
make, because when attorneys communicate with each other, as
they often fail to do early in the litigation, problems become man-
ageable or go away. They are able to identify issues in the lawsuit,
to narrow those issues, to focus the discovery on those issues that
are genuinely in dispute, and to work out the kinds of problems
that you may be hearing about that might arise in the course of
disclosure; problems that for that matter arise now in the course
of discovery.

So taking the amendments that are before you, together they
represent a very constructive approach to try to make this system
work better.

As has been pointed out, of course, the amendments really ad-
vance the purposes to which Congress has already subscribed in
the Civil Justice Reform Act, that is, to promote a more efficient
and less time-consuming process for discovery.

Twenty districts already are using some form of disclosure, and
these amendments will enable them to introduce flexibility into
their processes. Some have argued that there ought to be a period
of experimentation, but the fact is that this amendment to rule 26
contains opt-out provisions. A court can opt out, a judge can opt out
or the parties can opt out by stipulation. So in effect it opens the
door to wide experimentation and alternative ways of approaching
these problems and dealing with them.

Thank you very much.



27

Mr. Hughes. Thank you, Judge.

[The prepared statement of Judge Schwarzer follows:]

Prepared Statement of William W Schwarzer, Senior U.S. District Judge,
U.S. District Court for the Northern District of California, and Direc-
tor, Federal Judicial Center

My name is William W Schwarzer. I am a Senior United States District Judge
for tne Northern District of California and the Director of the Federal Judicial Cen-
ter. I served as a judge of the United States District Court for the Northern District
of California from 1976 until 1990 when I assumed my present duties as Director
of the Center. From 1952 until 1976, I engaged in the practice of law, specializing
in civil litigation.

This statement was prepared in response to a request from the Honorable Jack
Brooks, Chairman of the House Judiciary Committee. I appear in support of the pro-
posed amendments to the Federal Rules of Civil Procedure. My statement addresses
specifically the amendments to Rules 11, 26 and 30.

RULE 26

The primary purpose of the amendment to Rule 26 is to reduce the cost and delay
of litigation generated by excessive discovery activity. A secondary purpose is to
stimulate early communication among the parties and judicial intervention, leading
to narrowing of issues and earlier settlements. There is virtually no disagreement
that discovery often gets out of hand — in the sense that discovery costs are dis-
proportionate to what is at stake — generating expense as well as delay that can
make it uneconomical to litigate legitimate claims and defenses. The amendment of
Rule 26 takes a modest step toward reducing and focusing discovery activity
through certain pre-discovery disclosure. Requiring parties to disclose at the outset
of the lawsuit the identity of persons having relevant information and of documents
containing relevant information, as well as the computation of damage claims and
insurance agreements, will help the court and the parties to identify the critical is-
sues of fact and law more quickly, will obviate some discovery activity and make
other activity more efficient, and will facilitate earlier settlements.

There has been considerable opposition to the concept of disclosure. As other wit-
nesses will testify, the Advisory Committee gave careful consideration to the oppo-
nents' arguments and made substantial changes in earlier drafts to accommodate
legitimate concerns. To a large extent, I believe, the remaining opposition is ground-
ed on a misunderstanding of the way in which the amended rule will operate. To
a lesser extent, it may represent reluctance on the part of lawyers to change settled
ways of practicing their profession. While change for the sake of change is not to
be encouraged, where discovery is concerned, the old proverb — if it ain't broke, don't
fix it — does not apply and change is badly needed. I am convinced, for the reasons