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

try. The cost of this litigation is lowering American productivity,
which costs us jobs and also costs us both domestic and inter-
national markets. And somehow we have got to get a handle on our
suit-happy society without trampling on the rights of those who
have been legitimately injured as a result of either negligence or
a violation of the law applicable standard by someone else.

Rule 11, as it was originally promulgated, I believe was designed
to prevent the filing of frivolous lawsuits that were more designed
to force a settlement because it would be cheaper to settle the case
than to expend the money to defend the case and have the jury de-
termine that the defendant was, quote, "not guilty," unquote, of
whatever is being alleged.

My feeling of the proposed change in rule 11 is that by taking
away the mandatory sanctions, you are going to have more frivo-
lous lawsuits filed simply because the attorney that files the frivo-
lous lawsuit knows that he can escape the sanction if he gets
caught and can withdraw that frivolous pleading or frivolous mo-
tion within 21 days if someone objects.

Now, the benefit, therefore, I think flows to those who are filing
these types of pleadings and perhaps who are Federal district
judges who don't have to spend as much time on the bench listen-
ing to rule 11 motions, and the victim is really the person who has
been on the receiving end of this.

Now, how does your proposed change to rule 11 encourage justice
by letting those who are responsible for filing fi-ivolous pleadings
off the hook with no monetary damages, and make a victim who
has received a frivolous pleading have to expend the money in an
uncompensated way to bring a motion before the court to pressure
the withdrawal under the safe harbor provisions?

Judge Keeton. Well, let me say first, I fully agree with your
statement of the conflicting interests that we have to accommodate
here.



40

Second, I do not think that the proposed amendments that are
now before you give a free pass for frivolous lawsuits. Number one,
the judge still may sanction sua sponte. The rule only requires that
a party's motion go through the process of giving notice and an op-
portunity to withdraw first.

Third, the party who thinks the lawsuit is frivolous may give
that notice immediately, the 21 days starts running; it doesn't even
come to the attention of the court until the opportunity to with-
draw has occurred. And if that opportunity is taken, there is mini-
mal cost involved, both to the opposing party and to the system.
If that opportunity is not taken, then the rule 11 motion comes to
the court, and it is ruled on.

So our objective here is exactly the objective of accommodating
the conflicting interests you have suggested, and we think we have
accomplished it in a way that will involve less cost to the system,
both to the opposing parties who suffer some cost as a result of the
frivolous claims against them, and to the court system.

Mr. Sensenbrenner. Isn't it a tremendous burden for someone
who is claiming that a frivolous lawsuit has been filed against
them to prove that the lawsuit is frivolous?

Judge Keeton. Well, we have that burden under either form of
the rule. Yes, it is, and that is what makes it necessary to have
substantial hearings.

What this does is to give the opposing party an opportunity to
give the notice without going through that cost. And if that notice
does not have the effect of having the withdrawal of it, then the
burden that remains is exactly the same burden that exists under
the present rule.

Mr. Sensenbrenner. But proving the case would require an
awful lot of time on the part of the counsel for the victims. And
if there are not mandatory sanctions, and the counsel for the victim
and the victim prevails and the court makes a determination that
the lawsuit is frivolous, then how does that party get made whole?
What deterrent effect is there?

Judge Keeton. Well, there is still, even though the sanction is
not mandatory, there is still the discretion in the court to make it
that severe. What the discretion gives is a chance for the court to
think about whether this truly is that kind of frivolous lawsuit that
deserves the mandatory full sanction.

Mr. Sensenbrenner. Your Honor, I didn't practice very much
law before I got elected to this body, but rare is the case that I can
remember a judge really throwing the book at an attorney who
filed fi-ivolous cases, particularly since there is more of a sanction
than just the monetary award that may be ordered by the court.
The report of the malpractice insurance carrier is going to create
an economic sanction for that counsel that will last far beyond the
disposition of the case.

Judge Keeton. I agree with that, and I agree also that judges
do not like to be imposing sanctions on lawyers. It is a part of my
assignment as a judge that I like almost as little as criminal sen-
tencing decisions.

Mr. Sensenbrenner. We will talk about that one later.

Thank you very much, Mr. Chairman.

Mr. Hughes. The gentleman from California.



41

Mr. Edwards. No questions, Mr. Chairman.

Mr. Hughes. The gentleman from New Mexico.

Mr. ScHiFF. I would like to go back and talk about rule 26 for
a moment.

Judge Pointer, I think, if I understood you correctly, you are re-
ferring to the proposed changes in rule 26. When you presuppose
the idea of assuming that a motion for discovery has been filed, as-
suming an objection has been interposed and assuming the objec-
tion has been denied, you start from there. What is tne purpose
eliminating that as an actual procedure? What is the purpose of
starting three steps ahead and thereby essentially deny a party the
right to object and to have a real sitting judge make a
determination?

Judge Pointer. As to the items in 26(a)(1)(A) and (B), that is
identification of witnesses and description of documents, the rules
currently provide that those items are discoverable. There is no
reason to have to go through the process of having the interrog-
atory asked, the objection filed, and then the order by the court,
because the order is preordained, and what you are really talking
about is simply a waste of three separate pieces of paper being
filed, both in terms of time and expense, one of which involves the
court's time in addition that of the lawyers.

If you talk about other items that might be required to be dis-
closed beyond that core information, then we have the process that
remains for formal discovery request and opportunity to object and
to get rulings. But as to those, the identification of witnesses and
the documents, they are presently discoverable.

There is even an obligation under the present rules to supple-
ment the identification of witnesses that is even more stringent
than what some of the opponents attack under this rule.

Mr. SCHIFF. Particularly with respect to documents, there can be
an issue of breadth of documents that have to be produced. And
how is that going to be resolved? We are already into production.

Judge Pointer. This does not get rid of document requests. This
anticipates those requests by getting simply a description of the
types of documents and where they are located so as to enable
counsel to draft better and produce fewer controversies, those re-
quests under rule 34 for production. Thev come later, and you can
object. You can say it is burdensome or wnatever it may be.

Mr. SCHIFF. Under rule 26, what is the time frame? In other
words, from the dav the plaintiff files the lawsuit, how fast can pro-
duction be required under this proposed change?

Judge Pointer. There is to be no disclosure until the time frame
set, unless the court locally makes a change or counsel agreed to
a different setup, until essentially a time that is measured from the
date of a scheduling order. You have to look really at rule 16 from
rule 26 to do it.

But in practical terms it means that typically a defendant would
have 75 days after being served with a complaint in which to
produce the information of core information that the rule
contemplates.

Currently interrogatories are served frequently with complaints
and a defendant has 45 days to respond and provide answers to the
interrogatories that come with the complaint. So effectively there



42

is additional time being given, and even more important, a restric-
tion on the quantity, because your typical interrogatories that come
with a complaint are going to ask for far more than what 26(a)(1)
calls for.

Mr. SCHIFF. If I may pursue this just one more step, is there any-
thing in the proposed change — I am looking in conjunction with tne
fact that there is now a 21-day grace period, if you will, a safe har-
bor period, to withdraw a frivolous suit. Is there anything in this
proposed change in rule 26 that would allow for the production of
documents within the 21-day period for the safe harbor provision
essentially to allow a plaintiff's attorney to go fishing, and then if
they don't find what they are looking for, dismiss what was pre-
viously a frivolous lawsuit and just walk away from it?

Judge Pointer. If I understand your time sequence, this is a
frivolous complaint, the defense says, the defendant serves a rule
11 motion, and now the plaintiff is seeking discovery during that
period of time, if I understand it.

Mr. ScHiFF. Exactly.

Judge Pointer. These rules would not permit that without per-
mission of the court, unless there is agreement of the parties or the
court has adopted some local rule that changes it, because there is
to be no formal discovery until that first meeting of counsel; that
is, the meet and confer.

And that is set by reference, again, to the date of the scheduling
order, and again, typically that is going to be 75 to 90 days after
the filing. So there is not going to be any of that discovery unless
in your situation the plaintiff gets permission from the court for
early discovery in order to see if there is evidence that supports,
quote, this labeled "frivolous complaint," if I understand your
question.

Mr. ScHiFF. I believe you did, and I thank you for the response.

Thank you, Mr. Chairman.

Mr. Hughes. The gentleman from North Carolina.

Mr. Coble. Thank you, Mr. Chairman.

Gentlemen, thank you all for being with us.

Let me take them in order of precedents. Rule 11, as has been
indicated here today, convincing arguments can be put forward on
each side of this issue, but on balance, I have no problem with the
three proposed changes.

I will admit, gentlemen, there are some bold, reckless lawyers
out there who come before you all who are capable of creating
havoc, but I think there are more conscientious, discreet lawyers
who are not concerned about creating havoc. I think probably a
good argument can be made that these changes may well promote
fairness and equity. So I have no problem as to rule 11.

Let me shift to rule 26.

Judge Pointer, either you or Judge Schwarzer in your statement
made these words as to disclosure requirements. I think it was
Judge Pointer, and I can't find it in your statement. You indicated
the importance of being more selective, more restrained, and what
was your third

Judge Pointer. More efficient.

Mr. Coble. More efficient. I missed that and I can't argue with
either of those proposals. I am concerned, however, and I will be



43

glad to hear from you all in response as to whether or not trial
strategy is going to be compromised here.

I mean, as you gentlemen know, trial strategy is a very signifi-
cant part of litigation, and as the gentleman fi-om Wisconsin said,
I will admit, we have become a litigation-conscious, litigation-
happy, you know, file a suit, haul them into court, and that may
well have been abused.

But I don't want the strategy of trial to be compromised, I don't
want a client to say, "Well, my gosh, if we are going to have to fully
and automatically disclose everything but the kitchen sink, I just
won't fully disclose to my lawyer everything I know now."

Now, am I overreacting, gentlemen, to this? I would be glad to
hear from you.

Judge Pointer. I believe the concerns are legitimate. I don't be-
lieve the answer, however, is one that would cause in any way
these rules to be put aside. There is the potential as to strategy,
that at the present time some lawyers believe they can win cases
by deluging their opponents with discovery demands, with briefs,
with the requests, to the point of killing their opposition.

Unfortunately, these rules will not totally, and I am talking
about the entirety of rules 26 through 37, do away with that possi-
bility. They will make it a little bit more difficult by imposing some
limitations on number of depositions, number of interrogatories
and the like.

But still, the attempts could be made for that, and to the extent
you can call that strategy, I would say, yes, we are trying to keep
down that strategy, but I would not be apologetic for it. We believe
that is proper, that is, to stop that kind of strategy of winning a
lawsuit by simply killing your opponent with papers.

As to the approach toward the litigation, I don't believe these —
particularly the disclosure is what you are really referring to — will
affect that because, again, if you look back at what the disclosure
obligation is, 26(a)(1)(A) and (B) in particular, it does no more than
what attorneys are already being required to do in virtually all
cases that are going to need discovery and have potential evi-
dentiary hearings.

It simply says that, as to the core information, provide that sub-
set of information without the need for a request. If you want more,
then you have to do it through the formal discovery.

Judge Keeton. Let me just add one brief point to that. There is
one strategy that the rules have long been discouraging and these
rules are focused on making more clear we need to preclude; that
is the strategy of using procedure to try to win the lawsuit apart
from the merits.

These rules, these proposed changes, I think, are well designed
to serve the interests that I spoke of in my opening remarks, that
we want to make the rules substantively neutral.

So to the extent that the strategy we are talking about has some-
thing to do with the arguments on the merits of the case, this is
neutral. Both sides have these disclosure responsibilities, and the
immediate disclosure responsibility is not even as sweeping as can
be required by an appropriate discovery demand under the present
rules.



44

So I think we reserve the substantive neutrahty as to any strat-
egy on the merits.

Mr. Coble. Thank you, Judge.

Judge Schwarzer, do you want to be heard?

Judge Schwarzer. I would only say this. To the extent there is
a problem about clients withholding information from their lawyers
so it does not have to be disclosed to the other side, that problem
exists to exactly the same degree under the existing discovery sys-
tem as it would under the disclosure system. There is no difference.

Mr. Coble. Thank you, gentlemen.

Mr. Chairman, if I may, let me visit rule 30 very briefly. Old
habits die hard, gentlemen. And I don't mean this in any way dis-
paraging to you all, but the court stenographer or the court re-
porter, gentlemen, is just as indispensable as the judge. Your Hon-
ors, and I don't mean that in any way to belittle what you all do.

That habit is going to die hard for me, gentlemen, and the bur-
den is going to be on you all to convince me that we ought to just
leave this — ^you have all heard the adage, "If it ain't broke, don't
fix it." It is my belief that in this situation, it is not broke. Let me
put this question to the three of you.

Are court reporters the source of substantial litigation cost or
source of delay for litigation, one; and did your committee receive
a substantial number of complaints about the way depositions are
presently recorded?

I don't mean that to sound like a rhetorical question, because the
answer I am wanting is, no, court reporters are no problem. And
I don't think they are. But I guess I am a 19th century man, fellow,
and I am just uneasy about this audio and videotaping business.
So let me hear from you.

Judge Pointer. Court reporters are not a problem, and this is
not designed to remedy some problem with court reporters. We re-
ceived no complaints about court reporters. There is no desire, no
intent, and nothing here that would affect court reporters in the
courtroom. It only deals with depositions.

It is not even necessarily designed to facilitate some cost savings.
There are substantial arguments that say it is more expensive to
videotape than to use a court reporter.

Mr. Coble. That would be my gut feeling.

Judge Pointer. If lawyers want to make that selection, we as-
sume they will make a decision if they have the option to do so that
takes into account cost, accuracy, as well as utility at trial. We are
all in favor of that.

Mr. Coble. Mr. Chairman, I think he has exhausted my time,
and I appreciate your generosity.

Gentlemen, thank you all for your responses.

Mr. Hughes. Does the gentleman from New Mexico have a fol-
lowup question?

Mr. SCHIFF. I do, and I thank the Chair for recognizing me.

I want to go back to the proposed rule 11 change. This 21 days
of what we have called safe harbor where a case can be withdrawn
by the plaintiff without sanctions. What triggers that 21 days? Is
that 21 days from the filing of the lawsuit or is that 21 days from
some type of formal accusation?



45

Judge Pointer. Twenty-one-some days from the service of a mo-
tion seeking sanctions under rule 11. What happens is that a party
who beHeves that the other side has violated rule 11, serves that
motion for rule 11, but does not file it unless 21 days then go by
and there has been no corrective action taken.

We actually had hoped, and this occurs right now, that prior to
preparing and serving the motion, many counsel will call the oppo-
nents, say, "You are off the wall on this particular matter, even be-
fore I prepare a rule 11 motion, how about looking at this." And
sometimes that in fact occurs and attorneys will withdraw it. That
is how it works in terms of the timing.

Mr. SCHIFF. But I would then follow up and go back to my earlier
question, that it just seems to me that this proposed rule 21 change
to rule 11 combined with the earlier discovery, but still the earlier
discovery under rule 26 allows for fishing expeditions, allows for
lawsuits to be filed, for discovery to take place earlier than is pres-
ently the case, and then to essentially dismiss the lawsuit, but to
have in one's possession various documents that were the propri-
etary interests of the defendant.

Judge SCHWARZER. Could I say something about that is? There
is a notion that somehow there is a lot of frivolous litigation out
there. It is a very rare lawsuit that violates — is found to violate

rule 11.

Mr. ScHlFF. Maybe that is because you have present rule 11

without this change.

Judge ScHWARZER. The present rule is quite severe.

Mr. SCHIFF. That is right. That is the point.

Judge ScHWARZER. You are saying it deters, but what I am say-
ing is if a lawsuit is so patently frivolous, the first thing that would
happen is there would be a motion to dismiss or for summary judg-
ment, and in all probability disclosure provisions may never be-
come operative, because if it is that plain that the case should be
thrown out, that would bring on an immediate motion.

Mr. ScHiFF. Except that most of my practice was in State court,
but Federal proceedings don't require too specific pleading, and
therefore it is hard to identify frivolous lawsuits right off the bat.

Mr. Chairman, I think the

Judge Keeton. May I just give an illustration? I find it helpful
when I am thinking about a rule change like this to think about
cases. I will give you an illustration. A young lawyer filed a lawsuit
in my court. The opposing counsel, under the existing rule, couldn't
give this notice provision and bypass the process. Instead he filed
a rule 11 motion calling attention to a case, which was right
squarely in point and meant the case couldn't survive. The plain-
tiffs attorney recognized it, was ready to withdraw the matter.
Now they have a rule 11 motion before me and imperative sanc-
tion. What should do I with that case? This is not a case to give
that young lawyer a malpractice problem for the future.

So the appropriate sanction was, don't do it again, informally, in
the courtroom. The defendant was satisfied with that. They didn't
press the motion any farther.

I think this would formalize a process that can be handled now
in that way for the frivolous lawsuit that is inadvertently filed.
Now, of course, if it is willfully filed for the purpose of harassing,



46

then the 21-day notice doesn't serve any purpose. I have the rule
11 matter before me and I must deal with it. I think that is
appropriate.

It is an illustration of the kind of thing that will be taken out
of the system without the friction that the present mandatory sanc-
tion makes it necessary for us to have.

Mr. ScHlFF. Thank you, Mr. Chairman, for the additional time.

Mr. Hughes. Judge Pointer, you have mentioned a number of
times the fact that what you are trying to do with mandatory dis-
closure is to get at the core information. What is core information?
What is core information to you may not be core information to me.

One of the complaints I hear most frequently about the proposed
change in rule 23 is, what guidelines are attorneys going to have
in determining what is pleaded with particularity? Isn't that a le-
gitimate criticism?

Judge Pointer. There may be problems that arise over the inter-
pretation and application of the standard relevant to disputed facts
alleged with particularity. There were other options, as you know.
We looked at other words. Those generated their own controversy,
because they were unfamiliar words. So that is the evolving
process.

We do include at two separate points in the advisory committee
notes both an explanation of rule 26(a)(1) and under rule 26(f),
which is the meet and confer obligation on counsel, on explanation
and some clarification and guidance about the application of that
standard, and indeed do look for counsel at that mandatory con-
ference to discuss the issues in the case, and perhaps put some
meat on the bones that are in the pleadings.

Will that resolve all controversies? No. We think the controver-
sies that remain will be actually offset in terms of number by the
ones we don't have, don't get, that we presently are getting in con-
nection with original interrogatories and objections. And we get
those virtually in all cases. I am talking about myself, now. Vir-
tually all cases, there will be objections to the original interrog-
atories that are propounded, and the court has to get involved
in it.

Mr. Hughes. Do you really think you are going to get at those
situations which occur frequently. When I was practicing law, if
you didn't ask the right question, you didn't get the right answer.
You might get around to it with a second round of interrogatories
or at the time of deposition. Do you really think the proposed
change is going to address that problem?

Judge Pointer. I think it addresses it in terms of the two minor
items of information that 26(a)(1) deals with. One is the identifica-
tion of potential witnesses. And the other is a general description
of documents and where they are located.

Now, there is still going to be discovery in cases where this is
complied with. There are going to be depositions. But the people
will have hopefully a better feel and understanding about who to
select for those depositions if they have a list of their own and the
other side; a better way of drafting requests for production; or de-
ciding which documents to try to get, and indeed, to avoid some of
the controversy, but there is still going to be controversy.



47

This core information is a small subset of information that liti-
gants are likely to want and need and be getting in the course of
discovery. It doesn't address that. It is the limits on numbers that
address those problems, not rule 26.

Mr. Hughes, The provision in proposed rule 26(b)(5) for protec-
tion of material that is privileged requires that the party claiming
the privilege make that claim expressly and "shall describe the na-
ture of the documents, communications, or things not produced or
disclosed in a manner that, without revealing information itself