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

privileged or protected, will enable other parties to assess the ap-
plicability of the privilege or protection."

Isn't that going to be difficult to accomplish, in addition to en-
couraging a rather large motion practice?

Judge Pointer. Well, I would call your attention that this reallv
does deal with discovery requests and has little application — al-
though you can think of a situation that would involve disclosure —
but it is really dealing with discovery requests. This is the same
kind of thing that goes on in case after case that I bet any of the
three of us would recite, and that is using the so-called Vaughan
Index in which if a party is going to resist having to produce docu-
ments, they are then called upon to give some basic information to
say, yes, I am holding back, and a category of documents from cli-
ent to attorney or back and forth, so the other side then knows
whether there is any reason to bring on a motion to test that.

Luckily, I don't get that many motions that contest claims of
privilege, but I do get some. You should be aware that rule 45 as
it became effective December 1, 1991, a year and a half ago, has
the same obligation in it when you are talking about production re-
quests directed to third parties, that if they are going to resist pro-
duction on the basis of privilege, they have got to make a listing
like this.

So there is nothing that we are imposing on parties that we don't
already impose on our

Mr. Hughes. The point is, you don't think that would encourage
any more motions than you presently have?

Judge Pointer. No, I do not.

Mr. Hughes. Justice Scalia's dissent characterized the new dis-
covery requirements as another layer on the discovery process.
Judge Pointer, in your statement you concede that is a legitimate
objection.

Judge Pointer. Sure.

Mr. Hughes. And you say, "We cannot say with certainty that
those fears are unfounded."

In light of this, what would be the problem with deferring the
amendment for a year to study the impact of disclosure in the pilot
programs?

Judge Pointer. Let me see if I can separate two parts to that
question. One deals with the criticism about another layer, and the
other deals with the suggestion of suspending the effective date.

As to the criticism, I would say that there is no way that you can
discount as without merit a criticism that this does provide an op-
portunity for lawyers to make objections because they now have
something called disclosure, which they didn't have before. And
there will be some, though we think it is going to be more than off-



48

set by the reduction in disputes in the formal discovery. And if so,
we are prepared and beHeve that this is a good balance struck
there.

There are other reasons for believing this wall save time and ex-
pense as well. But there are going to be some disputes, particularly
during the learning period, when people are having to learn these
new requirements.

The other question is, what about suspending the rules or at
least 26(a)(1) for a year? Let me suggest that a suspension of 1
year is probably the worst decision that could be made.

Mr. Hughes. How about if we just reject it?

Judge Pointer. It would be better to reject than to suspend for
1 year, because if you reject, assuming you nevertheless incor-
porate something that makes it clear to the 21 districts already
and to the many others that are planning to have disclosure re-
quirements in their plans, that it is all right, as long as you put
that provision in to do it, then it is better to reject the change alto-
gether of 26(a)(1) than to suspend

Mr. Hughes. Let me alleviate your concern. That would not be
my approach. I mean, there may be a consensus to reiect because
we don't have enough information. We probably would just reject.
We wouldn't suspend. I don't think that would be our process. We
would just not accept the recommendation, and then we would
have to revisit it.

Judge Pointer. Then I may have misunderstood your question.
I thought you were talking about suspending the effective date for
1 year.

Mr. Hughes. I said defer. I don't think I said suspend. I said
defer. We would not accept the recommendations, but with the un-
derstanding that we may come back and revisit that.

Judge Pointer. One problem is that if you really expect to get
back into the arena from, let's say, this calendar year to next cal-
endar year or the one afterwards, I would be very fearful of further
changes in the process until it is time, as the CJRA contemplates,
for us to review the experience of 94 courts as well as the 20 that
the CJRA calls for, and as CJRA calls for, we are supposed to then
reevaluate the national rules based upon that experience.

That process is really talking about something that could only be
completed with rules back like they are now. After evaluating that
experience, you are in 1998. If you are thinking about doing some-
thing that would put off or perhaps revisit in another year or 2
years, those additional changes I think would be very difficult for
courts to manage with, and to know what they are guided by.

Mr. Hughes. I must tell you, just speaking for myself, I am con-
cerned about setting up pilot demonstration programs and then
moving ahead making changes before we get the results. I must
admit, however, I have seen situations where we have set up dem-
onstration programs, gotten the results, and didn't like the results.

Judge Keeton. Mr. Chairman, may I make two brief points in
response to that concern? Number one, in the district of Massachu-
setts, we have been operating with this system under our local plan
since last fall. I haven't yet had my first controversy over the dis-
covery rules. I am waiting for it. In my rule 16(b) conferences, the
parties have come, having consulted. The system seems to be work-



49

ing well. I know I won't be lucky enough to have it keep going that
way down the line a long time. That is the first point, though. I
think one can be worried about something that may not happen at
all.

The second point I want to make is that we won't really know
the effect of the experiments for 7 to 10 years. Now, some of the
plans for evaluation that Judge Schwarzer has already spoken
about are talking about an evaluation 7 years down the line. We
won't have anything within a year that is more than an opinion
poll without any basis for us to evaluate it other than the credit
we give to the opinions of the lawyers and judges who are operat-
ing under the system.

Mr. Hughes. Judge Keeton surely we will have more information
a year from now, more empirical data.

Judge Schwarzer. Not on this subject. There is no empirical
data working its way through the system on the subject of manda-
tory disclosure. And I want to add that the 10 pilot districts in the
Civil Justice Reform Act are not required to have mandatory disclo-
sure. Those pilot programs deal with other issues, but not manda-
tory disclosure, and to my knowledge, offhand I don't know of any
of the pilot districts that actually do have a mandatory disclosure
system that is at all comparable to what this rule will provide.

So in 7 years or 10 years, you will not have empirical data on
how mandatory disclosure worked in the pilot districts or the dem-
onstration districts.

Mr. Hughes. We do have districts that have some form of man-
datory disclosure.

Judge Schwarzer. You do, but those are early implementation
districts. But they are not being studied and there is no effort to
maintain empirical data. They have no resources, no people collect-
ing empirical data on the specific aspect of disclosure. So all you
will know is what Judge Keeton has just told you. He has got one
motion or no motions or what have you.

Mr. Hughes. My recollection is in your own statement, Judge
Schwarzer, you indicate that the results thus far are promising.

Judge Schwarzer. They are, on the basis of statements such as
Judge Keeton's that they have had no complaints and no increase
in motion practice in those districts that have it.

Now, it is only fair to say that most of those districts have pro-
grams, mandatory disclosure programs different from what that
rule provides. There may be some that happen to follow the rule
closely, but there is a great variety.

But what we can say is that I know that in the district of Texas,
there have been no complaints. I know the Western District of Ken-
tucky is working, and there are no complaints. They are not iden-
tical programs, but that is what we know.

Mr. Hughes. Surely we will have more information, although it
may be anecdotal, district by district, a year from now than we do
today. I mean, we have been experimenting since 1990.

Judge Pointer. We will, but that will not enable us to do any-
thing with rules changes based upon that some type of experience.
Assuming we give full credit to the anecdotal kind of response, still
the whole rules process is such that presumably we would be back



50

in the situation of putting out rules for comment, and we are talk-
ing about then a 2V2-year period of time

Mr. Hughes. Because the process takes so long?

Judge Pointer. Yes.

Mr. Hughes. Let me ask you, one of the questions that my col-
league from New Mexico raised concerning Justice White's com-
ments, should we reexamine the Rules Enabling Act to leave out
the role of the Supreme Court?

Judge Keeton. May I respond to that? Number one, of course,
none of us can speak even for the Judicial Conference, because it
hasn't taken a position on this, much less for the Supreme Court.
Only the Supreme Court can speak for itself on this. But I will ex-
press a personal opinion on it.

Mr. Hughes. I understand.

Judge Keeton. I think the Rules Enabling Act process is well de-
signed. The Supreme Court needs to be in the process, not to do
the detailed, meticulous kind of drafting and hearings that have
been delegated to the Judicial Conference and its rules committees,
but they need to be there as a kind of governing board and as the
place that has an institutional competence that is special because
the place where the whole process might go wrong and not be
strictly neutral will be demonstrated by the most dramatically sig-
nificant cases. That is the small selection of cases that come to the
Supreme Court.

So they are in a position to make a judgment that I think needs
to be in the system. And I think it is appropriate for them to in-
trude as much or as little as they think appropriate on the more
meticulous process that is going on before it gets to them and then
is passed on to Congress.

Mr. Hughes. Any disagreement?

Judge Pointer.

Judge Pointer. No, the dissents to these recent changes indicate
certainly the Justices were reading and considering the changes.
They are not simply letting them go through summarily.

The Supreme Court has on occasions, for example in 1991, re-
jected some rules, sent them back, although they had gotten to that
point. And you can go back to several different times where some
action has been taken by that. So notwithstanding any discomfort
they may feel or some of them may feel in connection with their
role, obviously they are playing a significant role, although not in
the technical drafting.

Mr. Hughes. The gentleman from New Mexico.

Mr. SCHIFF. Thank you, Mr. Chairman.

But the transmittal letter we have with these rules, again, we
may have had it before and it was not brought to my attention, the
Chief Justice says, "We are referring these rules to the Speaker of
the House, the Congress, but we are not necessarily saying they
are in the form we would prescribe."

So I am asking the panel, as you see it now, do you believe that
the Supreme Court has an appropriate role if they choose to exer-
cise it, to veto proposed rules and to say. We don't agree with
these, we are sending them back? Because I am not sure the major-
ity sees it that way based upon the letter of transmittal.



51

Judge Pointer. I certainly agree that that is a legitimate role,
one that has been and should be from time to time exercised. The
transmittal letter does contain that caveat, that to my knowledge
there was never any previous transmittal letter. However, it is a
caveat that is expressed in all of the transmissions, not just the
civil rules. The civil rules are the ones that provoked the dissent.
But that same caveat is in all of the other rules being sent forward.

The actual language is one of adoption. If you look at what actu-
ally occurs in the back of the transmittal letter, there is no ques-
tion about the Supreme Court having adopted these rules. They did
adopt them. It is the transmittal letter that contains the caveat.

Mr. ScHiFF. Would either of the other panelists care to respond?

Judge Keeton. Let me add one thing. There is a distinction in
the transmittal letter this time from before. I think that is a rec-
ognition of the reality that with our more complex litigation today
and with the greater complexities of the process of thinking about
how we fashion rules that will be procedurally neutral and effective
in this context of more complex litigation, they are calling attention
to the fact that they are delegating, they are depending to a sub-
stantial extent on the careful, meticulous study of the committees.
You will recall that letter of transmittal also said, "We are satisfied
that the process has worked with integrity in this circumstance
and we are forwarding the rules."

I think it was an appropriate element of greater candor and
openness that we should welcome.

Mr. SCHIFF. Well — I am sorry.

Judge ScHWARZER. I agree with that. I think the Supreme Court
to the extent you want to read between the lines was making clear
that they see their function as a veto function, and that they don't
arrogate to themselves the difficult task Judge Keeton has de-
scribed of fine tuning how a rule should be done. They can say
there may be different wavs of approaching this problem, but it
isn't something they wanted to veto.

Mr. Hughes. Does the gentleman from California have any ques-
tions?

Mr. Edwards. No, Mr. Chairman.

Mr. Hughes. You have been very, very helpful. We have taken
a lot of time but these are very important issues. I wouldn't want
to violate the rule that says "when in doubt, wear them out."

Judge Keeton. We thank you very much, Mr. Chairman. We will
remain available.

Mr. Hughes. Let me again thank you for the excellent work of
the committee. We really do appreciate your assistance and your
guidance. You have been very helpful to us today. We thank you
very, very much.

Judge Keeton. We will remain available both today and later if
we can be helpful.

Mr. Hughes. Thank you very much.

Our second panel is likewise a very interesting panel. The first
witness on this panel is John Frank, who is a partner of the law
firm of Lewis and Roca, and general counsel to the Arizona Demo-
cratic Party. Mr. Frank has been a member of the Rules Practice
and Procedure Committee of the Judicial Conference the United
States, and has taught at Indiana Law School and Yale Law



52

School. He has also served on the Arizona Appellate Court Nomi-
nating Committee, and was Chairman of the Nominating Commis-
sion tor the Federal Court of Appeals for the Ninth Circuit. He
served as law clerk to Justice Hugo Black during the October 1942
term of the U.S. Supreme Court, and has published extensively on
matters of legal history and constitutional law.

Our next witness on the panel is William K Slate H, president
of the Justice Research Institute, appearing today on behalf of the
National Court Reporters Association. Prior to his present position,
Mr. Slate served as project director for the Public Committee on
the Federal Courts Report, Director of the Federal Courts Study
Committee, the executive director of the Virginia State Bar, and
Circuit Executive of the Third Judicial Circuit of the United States.
Mr. Slate has also been in the private practice of law and with the
FBI. He has taught and lectured at various universities and has
published extensively on a variety of issues.

Our next witness is Judyth W. Pendell, vice president of the
Aetna Insurance Co., who is appearing today on behalf of the
American Insurance Association. Ms. Pendell has been a member
of various organizations involving civil justice reform, including:
the Brookings Institution Task Force on Civil Justice Reform; In-
surance Advisory Committee to the Institute for Civil Justice at
Rand; board member of the National Chamber Litigation Center;
chair of the Subcommittee on Judicial Issues, Mass Tort Task
Force, United States Chamber of Commerce; and Subcommittee of
Procedural Law and Practice, American Insurance Association. She
also has published several articles on civil procedure.

Our final witness on the panel is Louise La Mothe, chair of the
American Bar Association, section of litigation. Ms. La Mothe is a
partner in the law firm of Riordan & McKenzie in Los Angeles, CA.
She entered private practice in 1975, after teaching law at the Uni-
versity of Kansas and directing its legal aid clinic. Ms. La Mothe
has practiced before State and Federal courts at both the trial and
appellate levels.

We welcome each of you to our subcommittee. We have read your
statements in full, and they will be made a part of the record in
toto. We would like you to summarize for us, because that way we
can get right to questions, of which we have many, as you can tell.

Why don't we begin. Let's see, who wants to go first?

Mr. Frank.

STATEMENT OF JOHN P. FRANK, SENIOR PARTNER, LEWIS
AND ROCA LAW FIRM, PHOENIX, AZ

Mr. Frank. Mr. Chairman, members of the committee, I thank
you.

I will abbreviate sharply, of course. You have the statement, and
your time is precious. Back in the Kastenmeier years I felt I was
virtually a member of the family of this committee. Mr. O'Connell
has been so cordial in allowing participation here that I can merely
applaud, and I do applaud the fact that you are taking early hold
of this whole problem.

Let me say first that I do hope that you will let all of these pro-
posals take effect. I have been in the proceeding throughout and I
have been in all of the proceedings for over 30 years. I am very



53

grateful to the fact that Judge Pointer gave us full and fair hear-
ings. My points of view on many matters did not prevail, but I had
a fair day in court and a fair run at it.

Judge Keeton has conducted the proceedings of the standing
committee with very great fairness and thoroughness. And at least
for me as a member of the bar, it is time to acquiesce.

But I am particularly grateful for the fact that you are taking
this up at an early date and not letting it drift.

Now, I have organized my statement first by picking up some 20
or so of the rules which really don't warrant discussion here. There
are no controversies. They are small improvements, a good thing
to have. The world doesn't come to an end one way or the other.
I have outlined them, pages 4 to 8. There are roughly 20 of them.
I think they are not terribly important.

There are three rules that are genuinely important, and are not
controversial at all, and they are further reason why this package
ought to move. Rule 33, limiting the number of interrogatories, is
extremely constructive.

Let me confess sometimes a fellow makes dumb mistakes. Maybe
I am making another one. In 1983 I resisted putting a limit on the
number of interrogatories because I felt we didn't know enough
about it. And in an ABA article I did not object to rule 11 because
I thought it would be of no consequence. That shows how many
mistakes you can make.

The fact is that we do now know from experimentation that the
limitation on interrogatories is helpful and economical. The provi-
sions in rule 54 and rule 58 are extremely useful. They deal with
the problem that Congress has created and has not yet dealt with.
You have over 100 statutes now permitting shifting of attorneys'
fees. We have no way of administering those problems, and they
are creating great tie-ups and difficulties in the courts, and these
rules deal with that.

Let me touch briefly on the major matters in which you have ex-
pressed interest this morning. Rule 11 as it was adopted in 1983
has been described by Prof Charles Alan Wright as the worst self-
inflicted wound in the history of the rulesmaking process. It had
high purpose and good intentions, but it has worked out as an ab-
solute blight.

In this connection, I wish to make clear that I have been rep-
resenting the leadership of the litigation section of the ABA, the
board of governors, the American Tribal Lawyers Association; and
also some 13 State bars, countless judges and professors, and par-
ticularly the Procedure Committee of the American College of Trial
Lawyers.

I think it is fair to say that in your total experience, and at least
in mine, you have never had a bar outpouring as strong as the one
as you get now and today and that I am presenting to you and
have to the committees, to the effect that rule 11 has worked very,
very badly. The fact is that it has created thousands upon thou-
sands of additional cases in the court systems as people quarrel
over whether or not there should or should not be sanctions, a fac-
tor which will be of some special interest perhaps to Mr. Sensen-
brenner because of his earlier questions.



54

The excellent work of the committee of the Seventh Circuit Court
of Appeals on the civility of the bar led by a Wisconsin lawyer has
emphasized that rule 11 has contributed materially to the lessen-
ing qualities of the relations within the profession. The fact is that
under rule 11 as it stands, first you try the case and then vou try
the other lawyer, and it is malpractice if you don't, and this has
created a real clog in the courts.

From the bar for which I am speaking here to an overwhelming
extent, I haven't heard a lawyer in America who thinks that this
rule 11 is tolerable. It is particularly hard in the civil rights cases
and has done great injustice there. The bar for which I was a rep-
resentative in this matter asks for more radical changes to rule 11
than we got. But what we have is simply a modification of it.

In relation to one of your questions, it has adopted in this rule
the language of Justice O'Connor in the Cooter case by emphasizing
deterrence as the goal, and it has greatly increased the due
process.

The plain fact is — let me put this bluntly because it is not a nice
thing — the plain fact is that judges like rule 11 better than lawyers
do. It is nicer to be a cat than to be a mouse.

But the bar is simply overwhelming on this subject. We come to
you asking for relief. And I stress the fact that the number of
judges who have severely abused the rule itself has been relatively
small. These changes are modest but they are improvements. I
would have liked more but I am grateful that we have at least got-
ten some attention.

Let me touch briefly on rule 26 and rule 30, because your time
is too short for any more discussion. With all deference to my good
friends, I think the people who are troubled over rule 26 disclosure
are spooked over nothing. The fact is that this is very, very modest
disclosure of stuff that you are going to have to produce anyway.
Anything that speeds litigation ought to be looked at at least with
a kindly eye.

The questions were raised about the disclosure in my county of
Phoenix, Maricopa County. The fact is my State has a disclosure
system so vastly more extensive than this that there is no resem-
blance. There has been no formal inquiry. If there had, I would say
what we have got is a lousy and excessive system. I would have
been in line with that point of view.

But the fact is that what is proposed here is really simply an-
swering interrogatories without going to the expense of having to
exchange them, identifying document areas. I regard it as essen-
tially tokenism.

I will touch very briefly on rule 30, because that is a problem.
The fact is that rule 30 will, to the extent that it permits at option
the use of video in connection with depositions, will to that extent
eliminate court reporters. But what we have got to face as a reality
is technological change occurs in the world, and when it happens
it is sometimes obsoletizes labor forces. That is a matter for a
greater degree of sympathy than I think the committees have
shown. They have limited it sharply. It doesn't take the court re-
porters out of the courthouse.