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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

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stated below, that once the bencn and the bar become accustomed to the disclosure
procedure, the objectionable features of discovery — excessive adversariness and
overuse of discovery resulting in unnecessary cost and delay — will be ameliorated.

The amendment furthers tne objectives of the Civil Justice Reform Act of 1990
which include "early involvement of a judicial of fleer in . . . controlling the discov-
ery process," "the encouragement of cost-effective discovery . . .," and "exploring]
the parties' receptivity to, and the propriety of, settlement or proceeding with the
litigation." (28 USC following 471, 473(aX3XA) and (4)). Approximately 20 districts
have already implemented mandatory pre-discovery disclosure in one form or an-
other in their civil justice expense and delay reduction plans adopted pursuant to
the Act and early reports indicate that it is working well.

Attached to this statement is a copy of an article shortly to appear in the Georgia
Law Review (27 Georgia Law Review, no. 3, June 1993) in whicn I have addressed
the arguments advanced by opponents of the amendment. In substance, the oppo-
nents argue that the disclosure process will reauire attorneys to do extra work, will
create confusion over what needs to be disclosea resulting in additional disputes and
litigation, and will create conflicts with their ethical obligations to their clients.
These objections can be readily disposed of.

The obligation to disclose the identity of knowledgeable persons and relevant doc-
uments arises only with respect to facts "alleged with particularity." For example,
a general allegation that a product with multiple components is defective in some
unspecified manner would not without more trigger an obligation to search for and
disclose persons possibly involved in or documents affecting the design and produc-
tion of that product. The obligation to make disclosure is proportionate to the speci-
ficity and clarity of the allegations; attorneys have no obligation to search out wit-



81-258 0-94-2



28

nesses and documents to support vague, generalized allegations, and the rule does
not require them to conduct any investigations beyond those required by profes-
sional standards and Rule 11. Disclosure, moreover, is not required until after coun-
sel have held the mandatory conference under Rule 26(0 to identify the issues and
develop a plan for disclosure and discovery. If further clarification of the disclosure
obligation in the particular case is needed, it can be had at the mandatory Rule 16
scheduling conference with the judge which follows promptly. And attorneys have
no obligation to produce any information or documents that they would not have to
produce under the existing discovery regime if the proper request is made; the effect
disclosure is expected to nave is to eliminate the adversary maneuvering and the
cost and delay that now surround such requests.

The amendment will not interfere with the attorney-client relationship. Rule
26(bX5) specifically allows parties to assert the work product and privilege rules be-
fore disclosure is required. The rule requires nothing to be disclosed that could not
now be discovered. And because the disclosure obligation is limited to matters rel-
evant to facts alleged with particularity, it does not call on attorneys to search their
files and use their ingenuity for the purpose of making a case for their opponent.
Some have said that disclosure may encourage parties — and possibly lawyers — to
cheat and hide damaging information. But that option is equally available to them
when called on to disclose damaging information in depositions or interrogatories.

Opponents argue that in large and complex cases, disclosure would impose intoler-
able Durdens and would be impractical. The rule recognizes that some cases may
require procedures tailored to their circumstances — not only large cases but also
small cases in which disclosure is unnecessary. With this in mind, the rule provides
that a different procedure may be established by order, local rule or stipulation of
the parties. The amendment is aimed at the bulk of the civil litigation in the federal
courts which involves relatively small financial stakes — small enough to create the
risk that uncontrolled discovery would make the litigation uneconomical. Controlling
the cost of discovery will enhance access to justice for civil litigants.

Opponents also argue that disclosure would undermine the adversary process. In
fact, the present discovery process leads to abuse of the adversary process because
it operates largely without control or oversight. What has become common prac-
tice — to obstruct, harass, and interfere with one's opponent in discovery — is now
sanctified as a part of the adversary process. That process, intended to further the
search of truth, is often used in discovery to subvert that objective. Disclosure
should remind attorneys of their professional obligation as officers of the court.

The amendment of Rule 26 also makes changes in discovery directed at experts,
disclosure of expert reports, foreign discovery, and claims of privilege. In their
present form, none of these appear to be generating significant controversy.

RULE 30

The amendment to Rule 30 carries forwardd the purpose underlying Rule 26 by
measures intended to reduce the cost and delay engendered by the overuse — and
sometimes misuse — of depositions. Rule 30(a)(2)(A) imposes a presumptive limit of
ten depositions per side. Additional depositions may be taken with leave of court.
The rule does not impose a time limit on depositions, but Rule 26(bX2) gives judges
specific authority to limit both the length and the number of depositions. A pre-
sumptive limit — coupled with disclosure — should lead attorneys to avoid excessive
deposition activity by focusing on key witnesses and key issues. Early identification
in the litigation of knowledgeable persons and relevant documents will help to avoid
unnecessary depositions and make those depositions that are taken more efficient.

The amendment to Rule 30(d) should reduce misuse of depositions by, among
other things, codifying lawyers' obligation to refrain from abusive tactics, such as
speaking oojections and inappropriate instructions not to answer questions. These
tactics are used to prolong and obstruct depositions, frustrating effective discovery
and often causing substantial costs.

The principal controversy surrounds Rule 30(bK2) which permits a party to take
a deposition oy non-stenographic means without leave of court. Unless the court or-
ders otherwise, a deposition may be recorded at the taking party's option by sound,
video, or stenographic means at its expense. Any party may make its own arrange-
ments for stenographic transcription and may also obtain a transcript of the deposi-
tion taken by non-stenographic means. While opponents argue that audio and video
recordings are unreliable * and difficult to use in court, their objections are ade-



iQn this point note that the Center has studied the cost, reliability, accuracy, and ease of
use of the audio tape recording of court proceedings in comparison to stenographic recording of
such proceedings and concluded that "[gliven appropriate management and supervision, elec-



29

quately addressed by the provision requiring a party wishing to use a deposition in
court to furnish a transcript to the opponent, as well as giving any party the right
to have its own stenographic transcript made at the deposition.

Much of the opposition to this proposed rule comes from court reporters. The cur-
rent rule favors court reporters in that it requires either a stipulation or a court
order before any non-stenographic means can be used to record a deposition. The
effect has been to create a banter to other technologies that might compete with
stenographic reporting. Because lawyers will control the means by which a deposi-
tion will be recorded, the proposed rule contains built-in market limits. If audio and
video depositions are unreliable and difficult to use in court, lawyers will not use
them. If, however, they are reliable, accurate, and cost-effective, they will serve the
purpose of the proposed rule and perhaps reduce one of the major costs of litigation.

Experience indicates that only a fraction of the depositions taken are ever used
at trial, and even then principally for potential impeachment of a witness. Freeing
parties of the obligation to have every deposition stenograph ically transcribed will
enable them to avoid substantial expense which for the most part is wasted.

RULE 11

The amendment to Rule 11 represents the Advisory Committee's effort to incor-
porate some lessons of experience under the present rule and to meet some of the
persistent objections that have been made to it. The committee recommended the
amendment to Rule 11 only after extensive study of existing practice and input from
the public and the legal and academic communities. The committee began its review
in 1989 and by 1990 had called for written comments about the rule and asked the
Federal Judicial Center to undertake an empirical study of the operation and impact
of the rule. Center staff presented a preliminary report on its study to the Advisory
Committee at the committee's February 1991 meeting. In conjunction with the Feb-
ruary meeting, the Advisory Committee also held a hearing at which various inter-
ested parties (chiefly opponents of Rule 11) were invited to testify. The Center's
final report was presented to the committee at its May 1991 meeting. After consid-
ering written comments, testimony, and empirical evidence, the committee drafted
a proposed revised rule and then received written comment and held two hearings
on the proposed revised rule before making its final recommendation to the standing
committee.

Principal revisions to the rule include expanding its reach to cover advocating or
reaffirming legal and factual contentions that were initially made in writing after
they are no longer tenable and the creation of a "safe harbor" — the provision that
notice and an opportunity to withdraw an offending contention must be given before
a motion for sanctions may be filed. The revised rule also states that the sanctions
imposed should be limited to what is sufficient to deter repetition of the conduct or
comparable conduct by those similarly situated, emphasizes that sanctions may be
either non-monetary or monetary, and limits the circumstances under which mone-
tary sanctions may be imposed.

Reasonable minds may differ with respect to the need for and desirability of the
various changes in the rule. What is important is that the changes do not reflect
a retreat from the basic proposition that papers that are frivolous or have an im-
proper purpose are not acceptable in the federal courts. The rule continues to re-
quire attorneys and pro se litigants to "stop and think" before making legal and fac-
tual contentions. It is true that, as revised, the rule provides that the court may
not shall as under the present rule, impose sanctions on finding a violation, but as
a practical matter the imposition of sanctions has been very much a matter of the
trial court's discretion, and the amendment simply recognizes the reality.



tronic sound recording can provide an accurate record of United States district court proceedings
at reduced costs, without delay or interruption, and provide the basis for accurate and timely
transcript delivery." J. M. Greenwood et al., A COMPARATIVE EVALUATION OF STENO-
GRAPHIC AND AUDIOTAPE METHODS FOR UNITED STATES DISTRICT COURT RE-
PORTING at xiii (Federal Judicial Center 1983).



30

[for pubucation in 27 georgia law review, no. 3 june 1993]

In Defense of "Automatic Disclosure in Discovery" —

wiluam w schwarzer*

[•Senior United States District Judge and Director, Federal Judicial Center. The views ex-
pressed are the author's and do not necessarily represent those of the Center or its Board. Alan
Hirsch assisted in the preparation of the article.]

In the Fall 1992 issue of this Review, three distinguished authors vigorously op-

Sosed the disclosure provisions of the proposed amendment of Rule 26 of the Federal
ules of Civil Procedure.^ Their article is thoroughly researched and well-written
but, I submit, fails to tell the whole story. In this response, I will analyze the five
major propositions the authors advance in support of their argument that the pro-
posal is flawed and draw attention to important aspects of the proposal that are rel-
evant to whether it should be adopted.

I. THE DISCLOSURE CTANDARD WILL APPLY TO ALL TYPES OF CIVIL LITIGATION, FROM
SIMPLE COLLECTION CASES TO PATENT, SECURITIES, AND ANTITRUST CLAIMS. THE
ONLY WAY TO FRAME A STANDARD COVERING SUCH A BROAD RANGE OF CASES IS TO
USE THE BROADEST, MOST NON-SPECIFIC TERMS ^

This argument proves too much. The federal rules are, and always have been,
transsubstantive and applicable to all categories of cases. Discovery in all cases has
been governed by a single standard — requests must be relevant to the subject mat-
ter and calculated to lead to the discovery of admissible evidence. And that standard
would continue to govern discovery under the authors' own alternative proposal.

More importantly, the authors err when they assert that the standard "will" apply
to disclosure in all types of cases. They fail to take into account that the disclosure
provision in Rule 26(aX 1) is in effect a default rule. The introductory clause states:

Except to the extent otherwise stipulated or directed by order or local
rule, a party shall . . .^

This opt-out provision would give courts broad power to alter the obligations
under the rule."* It is expected that courts will, by local rule, exempt certain cat-
egories of cases in which disclosure would make no sense, such as social security
and government collection cases.' Courts may also establish different tracks for dis-
closure and discovery in different tyjjes of cases, as a number have done in their
expense and delay reduction plans under the Civil Justice Reform Act.^

It is also expected that courts will enter appropriate discovery and disclosure or-
ders in particular cases, employing the procedure under the rule. It calls for a man-
datory pre-disclosure conference of the parties under Rule 26(D to discuss the claims
and defenses and develop a plan for disclosure and discovery, followed by the man-
datory Rule 16 scheduling conference at which the judge takes appropriate action
for the management of the case, including making orders governing discovery and
disclosure. In this way, courts will adapt the disclosure modification to the needs
of particular cases, such as complex cases in which the issues may not be clearly
denned at the outset of the litigation.

The authors, moreover, ignore the reality that most civil cases litigated in the fed-
eral courts are "small" cases in the sense that, as a result of excessive discovery
activity, the cost of litigation can become disproportionate to the amount at stake.



iBell, Varner and Gottschallc, Automatic Disclosure in Discovery — The Rush to Reform, 27
Ga.L.Rev. I (Fall 1992) ("Automatic Disclosure"). The article quotes relevant portions of the pro-
posed amendment.

2Id. at39, 48-9.

^This is the text of the provision as it appears in the proposed amendments transmitted to
the Supreme Court on Novemlaer 27, 1992. The text of the amendment as it appears in the arti-
cle (see id. at 3) omits the words "or local rule" and thus conceals the fact that courts may over-
ride the disclosure provisions by local rule as well as by case-specific order or stipulation.

■*The opt-out provision will in effect accomplish what the authors advocate, id 53-57, and what
Justice Scalia urged be done (see Supreme Court Order April 22, 1993, re Amendments to the
Federal Rules of Civil Procedure, Scalia, J, dissenting, at 5-6), that is, to permit local experimen-
tation.

^Contrary to the authors' suggestion, the opt-out provision is no limited to modificationn on
a "case by case basis. " Id. at 37, see also note 3.

"The escape clause is sufficiently broad to allow for considerable variation among districts,
the result of which will be to make available experience under a range of different approaches,
as the authors urge. Id. at 57.



31

The product liability and other complex cases about Which they are concerned are
only a small percentage of the docket and are not representative of the overall sys-
tem.' Under the amendment, counsel in those cases will be able to develop proce-
dural orders appropriate for the management of disclosure and discovery.

It is in the universe of the routine cases where disclosure is intended to have its
principal effect.® In those cases the issues generally are not particularly arcane or
obscure, as they may be in some of the product liability cases that occupy the au-
thors, and the information to be disclosed will generally be obvious. The importance
of the amendment is that it offers a device to cut through the tangle of discovery
that now ensnares litigants as soon as the action begins. Discovery has become a
knee-jerk reflex action that quickly takes on a life of its own, resulting in costs that
tend to deny access to justice to both plaintiffs and defendants. The amendment is
intended to encourage early definition and narrowing of issues and to get core infor-
mation on the table quickly, cheaply and without adversariness, in the hope that
this will bring about an earlier and less expensive resolution.® In fact, knowing that
this is how the rule will operate may deter much litigation because parties will be
on notice that they cannot play the discovery game in the hope of exhausting their
opponent before he discovers adverse evidence (or the lack of support for their posi-
tion).io

II. THE DISCLOSURE PROCESS IS BASED ON THE PUZZLING BELIEF THAT IT WOULD
RETURN A LEVEL OF PROFESSIONALISM AND HARMONY TO THE DISCOVERY PROCESS 11

Though this is a consummation devoutly to be wished, the goals of the amend-
ment's supporters are more modest. The amendment grows out of a recognition that
the unrestrained operation of the adversary process frustrates its larger purpose to
promote truth finding. As it functions in the context of discovery, the adversary
process tends to have the opposite result. ^^ Meaningful discovery requires that law-
yers comply with an obligation to disclose and produce material harmful to the cli-
ent's interest, but that obligation will often seem in conflict with the postulate of
the adversary process that a lawyer's first duty is to protect the client's interest.
The adversary process is also premised on the presence of a neutral arbiter to over-
see and control the litigation; yet discovery by necessity must function largely with-
out oversight and control.

The purpose of the amendment is to moderate the excesses of the adversary proc-
ess in two ways: 1) to remove any doubt that the lawyer owes a duty to the court
to make disclosure of core information (though no more disclosure than good lawyers
recognize they must make now when the right discovery demand is made),i^ and
2) to reduce the amount of controversy over discovery that some lawyers now gen-
erate, often in the hope of wearing down their opponent and delaying the evil day
when they must produce or disclose that which they would rather withhold. Disclo-
sure will not make litigation all sweetness and light, but by making a lawyer's obli-
gation manifest, it should eliminate much of the game playing common to discovery;
consider how often lawyers ask themselves, "how can I interpret this interrogatory,
or document request, to avoid giving up what I know my opponent is afler?" While
there will be follow-up discovery after disclosure (such as depositions), if disclosure
works as intended much important information will first have been exchanged.

That is not to say that the amendment would, as the authors contend, "undermine
the adversary system and invade the work product of attorney s."!"* Their assertion
that it "ignores both the work product doctrine and attorney-client privileges" is

^During the statistical year ended September 30, 1992, product liability cases, for example,
accounted for only about 5% of all civil filings. 1992 Annual Report of the Director of the Admin-
istrative Office of the U.S. Courts, Table C-2. See also Winter, Foreword: In Defense of Discov-
ery, 58 Brooklyn L. Rev. 263, 275-76 (1992) ("Winter"). Judge Winter was a member Or the Ad-
visory Committee on Civil Rules and paiticipated in the deliberations and decisions leading to
the adoption of the amendment.

8 Winter, note 7 at 275-76.

^Advisory Committee Note, subdivision (a). See Winter, note 6 at 271.

^°See Automatic Disclosure, note 1 at 12.

"Id. at 40.

"^See, generally, Schwanser, The Federal Rules, The Adversary Process, and Discovery Re-
form, 50 U. of Pitt. L. Rev. 703 (Spring 1989) ("Federal Rules and the Adversary Process").

^^"AU attorneys, as 'officers of the court," owe duties of complete candor and primaiy loyalty
to the court before which they practice. An attorney's duty to a client can never outweigh his
or her responsibility to see thai our system of justice functions smoothly" Malautea v. Suzuki
Motor Company, Lid. F2d (llth Cir. April 9, 1993).

1* Automatic Disclosure, note 1 at 46-48.



32

simply wrong.^^ Rule 26(bX5) specifically allows parties to assert a work- product
or privilege claim before materials subject to such a claim need to be disclosed or
before a party may depose a witness. ^^ The rule requires nothing to be disclosed
(such as privileged or irrelevant matter or work product) that womd not now have
to be disclosed if requested — it "simply [does] away with the need for a party to
make a formal request for discovery and with the opportunity for the adversary to
resist."!'

Nor would the rule require counsel to "use his or her creative and analytical tal-
ents to discern the theories of the adversary" to determine what to disclose.^^ The
rule requires disclosure only of "discoverable information relevant to disputed facts
alleged with particularity in the pleadings."!^ As the Advisory Committee note
points out, the extent of the disclosure obligation is directly proportional to the spec-
ificity of the allegation; vague and conclusory allegations do not obligate lawyers to
search out witnesses and documents to make the opponent's case.^" What the rule
should accomplish is to reduce the cost and delay of getting at plainly relevant core
information would limit the opportunities to obstruct and delay the disclosure of
such information when it has potentially adverse consequences. If in the process it
also helps raise the level of professionalism and restore a measure of civility, so
much the better.^i

III. THE VAGUENESS OF THE DISCLOSURE RULE WILL INCREASE MOTION PRACTICE 22

In support of their contention, the authors refer to allegations from what they de-
scribe as a "typical case filed in federal court":23

Defendant . . . placed said automobile into the stream of commerce in a
defective condition, unreasonably dangerous for use . . .2*

The authors maintain that under the proposed disclosure rule, such a pleading
would give the defendant "no basis to determine what or how much information
should oe disclosed. . . .2^ The short answer is that such an allegation, failing to
"allege . . . facts with particularity," does not trigger an obligation to disclose.26
Moreover, such pleadings in the present discovery regime routinely lead to vague,
catch-all discovery reauests that do not measure up to the standards the authors
hold out in the artiae: "specific" requests conveying "clear and distinct obliga-
tions. "2? All too often, requests do not, as the authors think they should, "identify
with some degree of specificity those documents the party needs. . . ."2® The au-
thors will no doubt concede that lawyers are commonly left "wondering whether
countless individuals, documents, data collections, and tangible things should be in-
cluded in the . . . disclosures."29 There is no reason to suppose that motion prac-



16 Id. at 5.

18 Winter, note 7 at 270.

"Id. at 271. The authors' suggestion that the amended rule would somehow undermine attor-
neys' ethical obligations by requiring disclosure of information "harmful to the client's cause"
is baseless. Automatic Disclosure, note 1 at 5. Lawyers are under the same obligation now, but
their efforts to evade it cause much of the delay and expense in discovery. Opposition to disclo-



Online LibraryUnited States. Congress. House. Committee on the JAmendments 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 text (page 6 of 45)