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

sure as "fundamentally incompatible" with the adversary process has turned a blind eye to a
lawyer's professional obligations. See the ABA's statement quoted in Automatic Disclosure, note
1 at 46-47.

18 Id. at 5.

"Rule 26(a)(lXA) and (B)(emphasis added).

2° Advisory Committeee Note, subdivision (a), paragraph (1) Winter, note 7 at 269.

21 Justice Scalia, in his dissent, observes that "the [disclosure] regime does not fit comfortably
within the American judicial system, which relies on adversarial litigation to develop the facts
before a neutral decisionmaker." Order note 4, at 5. But the problem (and the circumstance ani-
mating this reform effort) is that the safeguards and incentives of the adversary process do not
work well in the discovery process which largely occurs out of sight of the "neutral
decisionmaker." See Federal Rules and the Adversary Process, note 12, at 713.

22 Automatic Disclosure, note 1 at 5, 41-42.

23 While allegations such as those quoted in the text from a product Hability case must be
dealt with, they are hardly typical of Federal Court pleadings. See note 3.

24 Automatic Disclosure, note 1 at 42.

26 Id qi 42.

2« Winter, note 7 at 269.

27 Automatic Disclosure, note 1 at 42, 49.
2«Id. at 47.

2»Id. at 42. And the present regime regularly "plac[es] upon lawyers the obligation to disclose
information damaging to their clients ... in a context where the lines between what must be
disclosed and what need not be disclosed are not clear but require the exercise of considerable
judgment." Scalia, Order note 4, at 5. As discussed in the text, the Mandatory pre-disclosure
conference, followed by the Rule 16 conference, will clarify the disclosure obligation more efTec-



33

tice will incease under disclosure over what now occurs to resolve discovery dis-
putes, and the authors' dire prediction is not supported by the early experience of
the approximately twenty-four districts^" that have adopted variants of prediscovery
disclosure.

To the contrary, there are reasons to expect that motion practice will be reduced.
One reason is the pre-disclosure, pre-discovery conference mandated by amended
Rule 26(f), followed by the Rule 16 conference with a judge leading to an order that
would govern disclosure and future discovery.^^ This procedure will help identify
and clarify issues, thus cutting through the kinds of amorphous and uninformative
allegations that concern the authors. The procedure will define the issues, where
necessary, and thereby the scope of disclosure and discovery, and will anticipate and
avoid disputes. Parties will be required to develop a plan for disclosure and discov-
ery in light of the issues at the outset of the litigation. ^^ Another reason why motion
practice may be reduced is that as disclosure reduces the amount of discovery need-
ed, there will be fewer opportunities for disputes leading to motions. Finally, the
disclosure regime should put a damper on the proclivity of some lawyers to use un-
certainties that surround many discovery requests as an invitation to obstruct,
delay, avoid and harass, spawning disputes and motions to resolve them.^^

The authors' contention that early judicial involvement is essential to a cost-elTec-
tive discovery process is unassailable, but it is difficult to see why they view the
proposed rule as substituting "motion practice" for judicial involvement.^ Judicial
involvement is mandated by Rule 16; in the disclosure system, that involvement will
be more effective than it is now, or would be under the authors' own proposal, be-
cause it will be informed by the parties' early disclosures. The attorneys will become
more knowledgeable about their own and the opponent's case earlier than is now
the practice, and that in turn will lead to the judge being better informed about the
case. As a result, the Rule 16 conference will be more productive, and the orders
made will be more on target in guiding future discovery; this too should reduce mo-
tion practice.^'^

IV. THE VAGUENESS OF THE RULE WOULD LEAD TO OVER-PRODUCTION OF MARGINALLY
RELEVANT DOCUMENTS AND INFORMATION ^^

The rule requires disclosure, not production. With respect to persons having dis-
coverable information, it requires a brief statement identifying them and the sub-
jects of their information. With respect to relevant documents, it requires a "descrip-
tion by category and location."^'' Armed with this information, the opponent should
be able to request only what is considered relevant and useful, avoiding over-produc-
tion. This should lead to more cost-effective discovery. If request nevertheless engen-
ders over-production, the cause does not lie in disclosure but in a possible misuse
of the discovery process.



lively than the existing discovery regime and will ameliorate the concern over having to disclose
on a lawyer's "own Initiative." Id.

30 See id. at 20.

31 Advisory Committee Note, subdivision (1) The authors' criticism (Automatic Disclosure note
I at 52) that the Rule 26(0 conference "is almost totally unrelated to the discovery process" is
belied by a reading of the rule; among other things, the rule will require the attorneys to
"submit[] to the court within 10 days after the meeting a written report outlining the [discovery]
plan." The principal difference between the proposed rule and the authors' proposal is that the
latter separates the discovery order fi-om the order entered under Rule 16. As discussed here,
however, it makes more sense for a judge to enter a combined scheduling/discovery order after
the comprehensive consideration of the case envisioned for the Rule 16 conference. In other re-
spects, the authors' "Meet and confer" rule, see id. at 50-51, would function just as the process
under the amendment.

32 Thus accomplishing exactly what the authors advocate. See id. at 49.

33 See, for example, Malautea v. Suzuki Motor Company, F2d (1 1th Cir. April 9, 1993).
^'The Advisory Committee's purpose of accelerating the exchange of basic information and

eliminating paperwork associated in requesting it can hardly be equated, as the authors suggest,
with a "desire to reduce judicial involvement." Id. at 53 (emphasis in original).

36 As anyone having experience with early Rule 16 conferences knows, their principal short-
coming is that the attorneys often know little about their own case and less about their oppo-
nent's and thus are unable — and sometimes also unwilling — to disclose much to the judge. This
in turn leaves the judge largely flying blind early in the case.

38 Automatic Disclosure, note 1 at 5, 43-44.

3''The rule provides a procedure for resolving any uncertainties over the scope of the required
disclosure. See note 28 and accompanying text.



34

V. AUTOMATIC DISCLX)SURE WILL ALMOST CERTAINLY INCREASE COSTS ^^

The authors do not defend the existing discovery regime; they acknowledge
"unanimity . . . that discovery is now overused and abused . . . and
that . . . the process requires lawyers to try their cases twice: once during discov-
ery and . . . once again at trial. "^^ What evidence is there to suggest that a disclo-
sure regime will increase costs over the existing discovery regime? The authors'
speculation that it will is based on propositions this discussion has shown to be un-
founded and derived from an erroneous and somewhat myopic view of the meaning
and operation of the rule.

There is in fact reason to expect savings both in money and time. Disclosure will
obviate wasteful and unnecessary discovery .'*° Parties will not have to labor to dis-
cover the identity of persons (known to the opponent) with relevant information, and
they will be saved from talking unnecessary depositions of persons who turn out not
to have information. Similarly they will be spared the cost of identifying relevant
documents and seeking production of irrelevant matter, and they will be able to ob-
tain documents more quickly, making them more readily available at depositions.

No one can, of course, predict with assurance how practice under the aisclosure
provisions will turn out. But the case for discovery reform is overwhelming,^^ and
disclosure has compelling logic on its side and is surrounded by ample safeguards.
It is part of a package which contains other desirable features of which the authors
do not complain, such as the early disclosure required of plaintiffs damage computa-
tion and the extensive pretrial disclosure of the content and basis of expert testi-
mony. Reform is never a sure thing, nor without some pain — it has been described
as taking the bone away from the dog. But the proposed amended rule has received
extraordinarily lengthy and thoughtful consideration and deserves support.

Mr. Hughes. The mandatory disclosure provision of rule 26 al-
lows for a local rules option, as you just indicated, Judge
Schwarzer. Aren't you concerned that many courts will opt out of
the mandatory disclosure and perhaps balkanize the discovery
process in Federal practice?

Judge Schwarzer. Well, there is now a considerable diversity in
discovery practices in local rules and general orders as a result of
the process initiated by the Civil Justice Reform Act, which calls
on courts to identify their problems and to work out their own solu-
tions. This will legitimate it.

Now, in fact, there are wide disparities in the practice in Federal
courts in any event. Individual judges have different ways of going
about it. I don't think that this will aggravate the present situa-
tion, but it will provide opportunities for improving the process and
legitimate those improvements.

So I don't think that is a problem that is attributable to these
amendments.

Mr. Hughes. Judge Keeton, the Advisory Committee on Civil
Rules recommended that rule 11 sanctions be mandatory, but the
Rules Committee changed that to discretionary. There was, how-
ever, no rationale given for the change. I wonder if you can inform
the subcommittee of the rationale of the Rules Committee for its
particular action.

Judge Keeton. Yes. I think there were two principal reasons
that the majority of the standing committee voted to change that
"shall" to "may." One is concern that there had been a growing
body of discovery disputes, rule 11 disputes that required judicial
hearings and action after the 1983 change was made.



^* Automatic EMsclosure, note 1 at 5, 44-46.

3»Id. at 11.

â– **'The discloeing party's "obligation under subdivision (gXl) lo make a reasonable inquiry into
the facts of the case," Advisory Committee Note Paragraph (IXD), is no more than a lawyer's
minimum professional obligation of due care.

*iThe authors agree that reform is needed See id. at 4, 39.



35

Now, the fact that it occurred, the correlation with the 1983
amendment, doesn't necessarily mean there is a cause-and-effect
relation, but it created a concern. And I think that concern is ex-
plained a bit when I suggest a second reason; that there is also
concern that the mandatory sanction was having an effect, adverse
effect, overdeterrent effect against assertions of claims that in-
volved a proposal by an advocate for modification or extension of
precedents.

We do not want to have sanctions against legitimate requests for
the courts to modify or extend precedents. But if there is a man-
date that whenever a violation of rule 11 occurs there must be a
sanction, then there may be overdeterrence.

In this connection, I think trial lawyers are especially sensitive
today to something I think was not discussed in the 1983 Rules En-
abling Act process discussion; that is, it is impossible to limit the
effect of a sanction to just what the judge orders, because we have
a legal malpractice system in which every sanction has to be re-
ported to the insurers. They quite legitimately have an interest
in it.

Sometimes the real impact of a sanction is far beyond what was
contemplated by the rulemakers or by the trial judge in imposing
it. And I think those two things put together gave us a concern
that we were having more litigation over rule 11 violations than
was appropriate, and perhaps overdeterrence of some behavior that
we do not want to deter — that is, the legitimate urging of amend-
ment, modification, or extension of precedent.

Mr. Hughes. Rule 11, the proposed change in rule 11, also seems
to contradict what the U.S. Supreme Court recently said in Cooter
& Gell V. Hartmarx Corporation (1990). In that case the Court said,
"Baseless filing puts the machinery of justice in motion, burdening
courts and individuals alike with needless expense and delay. Even
if the careless litigant quickly dismisses the action, the harm trig-
gering rule ll's concerns has already occurred. Therefore, a litigant
who violates rule 11 merits sanctions even after a dismissal."

Aren't the amendments that are proposed to rule 11 in effect re-
versing that rationale?

Judge Keeton. Not truly, for this reason. The Supreme Court in
that case was interpreting rule 11 as it existed. And the Supreme
Court has been very faithful to the proposition that when they are
interpreting rulings, as when they are interpreting statutes, they
do not engage in independent policy analysis, but instead an analy-
sis of the underlying policies manifested in the statute or in the
rule.

Careful examination of the opinion of the Court in that case dis-
closes that was exactly what they were doing. We more recently,
as the committee is aware, I know, have been concerned about an-
other case, the Lumberman's case, in which the Chief Justice's
opinion, again, interprets a rule with respect to particularity of
pleadings exactly the way they read it, but then suggests perhaps
the Rules Committees should reexamine it. That is what we are
doing.

So we have reexamined rule 11 in this circumstance and have
made a recommendation, which of course goes through the Su-



36

preme Court as well as here, for a reconsideration of the underly-
ing policy of the rule as it existed with the 1983 amendment.

Mr. Hughes. Judge Pointer, the criticism leveled at rule 30(b)
concerns the reliability of audio and videotape. How do you respond
to concerns that crucial evidence may be lost or distorted through
that process?

Judge Pointer. I would, number one, say that while I have had
videotaped depositions used in cases before me, it is not that fre-
quent, so perhaps if I had had it occur more frequently I would
know more of that problem. I have not seen any indication that
when videotaped depositions were used at trial there was any prob-
lem with accuracy, faithfulness, fairness, or indeed up to this point,
with the durability of the record.

I have seen and heard those comments. I simply have no experi-
ence that would substantiate them.

Mr. Hughes. There seems to be some agreement, Judge Keeton,
that the cost of discovery must be reduced. Shouldn't we look to the
results of the pilot programs that were introduced in the Civil Jus-
tice Reform Act of 1990 first?

Judge Keeton. Certainly it is important for us to use those ex-
periments that the Civil Justice Reform Act

Mr. Hughes. Why do we engage in such demonstration projects
and experiments if we don't await the results before we make per-
manent changes?

Judge Keeton. Well, actually that point introduces another rea-
son that the amendment that is now before you should be adopt-
ed — for the reason that there exists a problem, which some of us
may have to decide judicially in an individual case, about whether
there is some conflict between the Rules Enabling Act and the Civil
Justice Reform Act.

Mr. Hughes. Have there been any challenges to the experi-
mental rules?

Judge Keeton. I am not aware of one that has come up yet. It
is an issue that has been discussed in some circles in the bar, and
bench/bar discussion. I am hoping we don't have to face it, because
it would be a difficult problem. And if these amendments go
through, I hope that they would be effective then by December 1
at a time before we are likely to have those challenges presented.

Judge Pointer. Mr. Chairman, may I intervene?

Particularly if Congress were to pass legislation that at this
point suspends the effective date or renounces the changes as they
relate to rule 26(a)(1), it seems to me it is going to aggravate the
problems of whether disclosure plans are permissible under CJRA
when Congress has taken action in effect saying "no" to some kind
of authorization.

Judge Schwarzer. Mr. Chairman, may I add something about
the studies under the Civil Justice Reform Act?

There are two sets of districts. You referred to both. There are
so-called demonstration districts, which are conducting various
kinds of alternate dispute resolution methods and procedures, and
they are being evaluated. They have nothing to do with

Mr. Hughes. Have they all been implemented, all 20?

Judge Schwarzer. Well, there are five demonstration districts,
and they are in operation, and they are currently being evaluated.



37

In addition to that, there are 10 districts, 10 pilot districts and 10
comparison districts. They will be evaluated at the end of the 7-
year period by the Rand Corp. that is now launching a study. But
they would be evaluated with respect to the overall impact of the
measures that have been adopted as part of the civil justice ex-
pense and delay reduction plans, of which discovery may or may
not be a feature, but in which many other procedures like tracking
and differentiated case management and other aspects are in-
volved.

So you will not under those evaluations get a discemable, specific
study that will determine the impact of the use of disclosure. It will
be an overall study of the impact of the civil justice expense and
delay reduction plans, measures that have been adopted compared
to other districts that have not adopted similar plans.

So you are not going to know a let more about discovery or dis-
closure at the end of the 7-year period.

Mr. Hughes. I have some other questions, but I will recognize
the distinguished gentleman from California.

Mr. MOORHEAD. Thank you, Mr. Chairman.

I guess there is a very fine line for lawyers, whether they aggres-
sively take care of the needs of their clients and perhaps stretch
the rules in order to do that sometimes, or whether they lay back
and are very docile and follow the rules that have been set before
them without testing them. They get into trouble either way.

I guess that is the reason this rule 11 is somewhat controversial,
because it is important that the court be able to control the admin-
istration of justice that is before it, and at the same time it is also
important that lawyers be able to take care of the needs of their
clients as the law provides the ability to do so. I suppose what you
are trying to reach here is an area that can bring those two things
together.

Insofar as the safe harbor provision, does that encourage people
to really stretch the rules, the lawyers to really stretch the rules,
knowing that if they get caught at it they can pull back? Or is it
a justifiable change?

Judge Pointer. If I may, Mr. Chairman and members of the
committee, the 21-day safe harbor provisions will not encourage the
filing of frivolous claims or defenses, because it does not provide a
safe harbor for judicially initiated sanctions. It solely relates to
sanctions initiated upon motion of a party. The courts still can say,
"You should have an imposed sanction."

It does not in any way prevent, for example, the filing of inde-
pendent lawsuits for malicious prosecution. What it does is say as
to this particular rule in the process, we are going to pull back
somewhat in order to give people a better chance when being noti-
fied, Hey, your pleading is off the wall, to say on review, "Yes, and
to withdraw it."

At the present time when that concern is raised, the attorney
confronted with that motion has a very difficult choice to make.
Not only is there the problem of potential conflicts of interest be-
tween tne attorney and the client, which sometimes even result in
having to get separate counsel because of the rule 11 motion sepa-
rating the attorney from the client, but it also makes it more dif-
ficult for a lawyer to withdraw that potentially offensive conten-



38

tion, because you are then virtually acknowledgping that there was
something wrong with your pleading.

And so it was in that light as well as to get the court out of this
process to the extent we could, that we thought the 21-day safe
harbor on motions by the attorney was desirable.

Mr. MOORHEAD. Along that same line is the discouragement of
the payment of litigation expenses. Are you recommending that so
that there wouldn't be encouragement for counsel on the other side
to bring these motions?

Judge Pointer. I would say that is a part out of it. We do not
believe that through the vehicle of obtaining some private gain,
that is, attorneys' fees for matters not connected with the filing of
the motion itself but for other things that arose out of the pleading
to which the rule 11 motion was addressed, we don't believe there
should be that kind of encouragement to file those, and it should
be viewed, rule 11, as one that really is addressed, as rule 11 right
now states, to representations, or, in this instance, misrepresenta-
tions to the court. That is really what rule 11 is designed to do.

We think that by shifting over to a deterrent mode as opposed
to a compensatory mode, and both would be perhaps legitimate ob-
jectives, both were there when the 1983 version was adopted, and
over time the court said, "We want to move and call this deter-
rence."

And that is what we have attempted to do, is to follow that
model, that the sanctions themselves should be viewed from the
standpoint of deterrence, not as compensation, and except in very
unusual situations, monetary awards would not go to the other
side.

Mr. MooRHEAD. How do these mandatory sanctions work in the
courtroom? What is your reason for going to the discretionary sanc-
tions?

Judge Pointer. Back to what Judge Keeton had to say on this,
the issue of mandatory sanctions is to some degree illusory because
although the rule has stated "shall impose," in fact and in practice
many, many judges have used the word "may" in that process, ei-
ther in deciding when there has been a violation, and there is some
discretion in that, if you look at the standards for review, you see
that it is on review treated as discretionary; but also and more par-
ticularly in the type of sanction that is imposed. The judges under
the 1983 version were given discretion as to the type of sanctions.

Therefore, the judge could say, "Well, there has been a sanction,
there has been a violation, but here is going to be the sanction."
And in effect it is a mere pat on the back of the wrist, and in effect
you have had an actual practice in many courts of treating the rule
as discretionary even though the wording of it was mandatory.

Mr. MooRHEAD. Maricopa County, AZ, has been experimenting
for over a year with a disclosure requirement similar to rule
26(a)(1). These attorneys reported overwhelmingly that disclosure
has increased the cost of litigation, chilled the willingness of clients
to disclose information to their own counsel, and has not led to ear-
lier disposition of cases nor reduced unnecessary adversarial con-
duct.

Is this the only survey that you know of that has been conducted
on this?



39

Judge Pointer. I am not even aware of that as a formal survey,
and on inquiry about it earlier with attorneys from Arizona, attor-
neys were unaware of any formal survey having been conducted.
That is not to say there have not been some informal surveys
taken.

It should be noted, however, that the Arizona disclosure require-
ments are far more expansive than the relatively modest default
provisions contained in 26(a)(1).

Answering your question, I know of no formal study anywhere,
Arizona or elsewhere.

Mr. MooRHEAD. Do you have a comment, Mr. Schwarzer?

Judge Schwarzer. No. I have been following what is going on in
Arizona because I have a personal interest in it. I have never heard
of such a survey.

Mr. MooRHEAD. I have no further questions, Mr. Chairman.

Mr. Hughes. The gentleman from Wisconsin.

Mr. Sensenbrenner. Thank you very much, Mr. Chairman,

I am concerned about both of the major proposed rule changes,
and I think perhaps I will start out with the proposed change in
rule 11, and direct my comments toward Judge Keeton.

I think we all know we have a litigation explosion in this coun-