CHAPTER 1 THE NEW WORLD OF NATURAL RESOURCES AND ENVIRONMENTAL LITIGATION—HOW THE RULES OF EVIDENCE AND PROCEDURE HAVE CHANGED
| Jurisdiction | United States |
(May 1996)
THE NEW WORLD OF NATURAL RESOURCES AND ENVIRONMENTAL LITIGATION—HOW THE RULES OF EVIDENCE AND PROCEDURE HAVE CHANGED
John Cyran
Joseph J. Bronesky
Sherman & Howard L.L.C.
Denver, Colorado
John Leonard Watson
Colin G. Harris
Edward E. Stevenson
Holme Roberts & Owen LLC
Denver, Colorado
This paper is divided into two sections. Part I reviews the recently revised Federal Rules of Civil Procedure with a focus primarily on discovery and voluntary disclosures. Part II reviews the relevance and admissibility of expert opinion evidence post-Daubert.
PART 1 THE NEW WORLD OF PRETRIAL PRACTICE: THE TIMES THEY ARE A CHANGING
Effective December 1, 1993, the United States Supreme Court implemented major revisions to the Federal Rules of Civil Procedure. The most significant changes affect the pretrial discovery process. This paper will identify the changes, and will address the legal and practical effects on preparing cases for trial.
A couple of caveats are in order. First, although the revisions to the rules were signed into effect by the United States Supreme Court as amendments to the Federal Rules of Civil Procedure, the revised Rules do not have universal application in the federal courts. Many of the revised Rules provide for supplementation by local rule, court order, or stipulation of the parties.1
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According to the Committee Notes of the Standing Committee on Rules of Practice and Procedure (Committee Notes),2 the revised Rules authorize local variations "in large measure ... in order to accommodate to the Civil Justice Reform Act of 1990," which directs districts to experiment with differing procedures to reduce the expense of civil litigation. Committee Notes, Rule 26, Subdivision (a), Paragraph (1). In addition, the Committee Notes state that districts may wish to exempt from the revised discovery requirements particular types of cases in which there is no discovery or in which discovery is rarely needed. Committee Notes, Rule 26, Subdivision (f). These cases include bankruptcy appeals, reviews of social security determinations, or government collection cases. Id.
In practice, the federal district courts have not been consistent in exercising their right to apply or not apply the revised Rules. Some districts have enacted local rules excluding broad categories of cases from the new discovery requirements; other districts have exempted only a few types of cases. A number of federal courts have exempted themselves from the disclosure requirements of the revised Rules. As time passes and lawyers and judges realize that the disclosure requirements are not the death knell of such practice, these exemptions should disappear.
The approaches of individual judges to the revised Rules can be even more significant. A judge's requirements for discovery plans, reactions to requests to modify discovery limitations,
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and similar matters can have a tremendous impact on pretrial practice. Accordingly, the trial lawyer should become familiar with both the local rules of the court in which the action is or will be brought and the practices of the judge assigned to the case.
Second, this paper is not meant to serve as a blueprint for ways to "win" the discovery battle. Rather, it will focus on discovery—and the new disclosure rules—in the way they are meant to be used—as tools for gathering evidence and preparing for trial. Over the years, too many lawyers came to view discovery as a weapon in the litigation "war." This is fundamentally wrong. It led to widespread abuses of the discovery process and, ultimately, to the changes in the rules and procedures discussed in this paper. From the courts' perspective, the rules of discovery were and are procedures for gathering and exchanging evidence needed for trial. They are not weapons to damage an opponent, nor are they rules to be evaded and avoided by sophistic analysis. The lawyer who approaches them properly will build credibility and sympathy with the court.
I. SERVICE OF PROCESS.
Before discussing the revisions to the Federal Rules of Procedure governing discovery, another change in the Rules should be addressed: the addition of waiver and fee-shifting to the provisions governing service of process. Under Fed.R.Civ.P.4 (d) , a plaintiff now may notify a defendant of the commencement of an action and request that the defendant waive service of a summons. The notice and request are to be in writing, addressed directly to the defendant or an agent authorized to receive service of process, and delivered through "first-class mail or other reliable means." Fed.R.Civ.P.4 (d) . The notice is to include a copy of the complaint, a prescribed text informing the defendant of the consequences of compliance and noncompliance with the request, the date on which the request is sent, an extra copy of the notice, and a prepaid
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response. The notice and request must allow the defendant at least 30 days from the date on which the request is sent to return the waiver. If the defendant fails to comply with the request to waive service of process, "the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown." Fed.R.Civ.P.4 (d) .
These revisions to Rule 4 establish a formal procedure by which, with the cooperation of the defendant, the costs of service may be reduced. The fee-shifting provisions ensure that "defendants that magnify costs of service by requiring expensive service not necessary to achieve full notice of an action brought against them are required to bear the wasteful costs." Committee Notes, Rule 4. Whether, in practice, Courts enforce this cost shifting on obstreperous defendants remains to be seen. In addition, the Rule 4(d) waiver provisions provide a benefit to the defendant who is willing to comply with a request to waive service. Pursuant to Rule 12(a)(1)(b), a defendant who has timely waived service under Rule 4(d) has sixty days from the date the request for waiver was sent to respond to the complaint. Defendants who refuse to waive service are allowed only twenty days after service to respond. Fed.R.Civ.P.1 2(a)(1)(A).
A second revision to Rule 4 of some importance affects the time within which a plaintiff must serve process upon a defendant after the filing of the complaint. Pursuant to Rule 4(m), a plaintiff who fails to serve the summons and complaint upon a defendant within 120 days of the filing date may receive an extension upon showing of good cause. Previously, the old Rule 4(j) mandated dismissal of a complaint where a plaintiff failed to serve the summons and complaint within the 120 day period. One of the problems with the previous Rule was that if a complaint was dismissed after the expiration of a statute of limitations, then whether it was dismissed with prejudice or without prejudice would be immaterial; the action could be barred in the future. The new Rule 4(m) was enacted in part to avoid the harshness of the previous Rule's operation. See,
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e.g., Solis v. Shalala, 157 F.R.D. 396, 397 (N.D. Tex. 1994) and Mejia v. Castle Hotel, Inc., 164 F.R.D. 343, 346-67 (S.D.N.Y. 1996) (both finding good cause for granting an extension to serve complaint where statute of limitations could preclude the plaintiff from refiling).
II. MANDATORY DISCLOSURE — THE CONCEPT AND TIMING
A. The Concept: "Tell it all, Brother"
The most significant of the revisions to the Federal Rules of Procedure are those governing discovery. Under the former Rules, discovery was a purely adversarial process. With few exceptions, a party was not required to produce or disclose information unless that information was specifically requested. As a result, discovery often resembled a game of cat and mouse, with the drafter of discovery trying to develop the most far-reaching, comprehensive requests that would leave no loophole, and the respondent engaging in jesuitical readings of the adversary's requests to disclose as little as possible. Over the years, this became an expensive, tortuous process inflicting unnecessary costs on clients, extensive damage on the English language, and substantial brain damage on the lawyers involved.
The old discovery system developed in part from the notice pleading provision of Fed. R. Civ. P. 8 (which itself was the result of an earlier attempt to reform the rules of procedure). Notice pleading enabled parties to state claims based upon vague allegations, so long as these allegations provided the defendant with "fair notice" of the claim. Plaintiffs who brought "notice" claims could rely upon vague allegations of wrongdoing, and then hope to use discovery tools to discover facts which supported their allegations. Defendants followed the same course with equally vague and unsupported affirmative defenses or counterclaims. At that point, however, the party seeking to determine what facts really constituted the adversary's claim or defense had to ask the right questions in discovery. An inartfully — or even artfully — drawn
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interrogatory or document request would be met with vague generalities or equally unhelpful responses. Questions that proved too broad would be met with objections, and relevant material might end up buried in irrelevant documents.
The revised Rules hope to replace this adversarial discovery process with fundamentally different concept—mandated disclosure. Under the new system, each party is required to disclose voluntarily information relevant to its own and the adversary's claims and defenses. In addition, the parties are required to meet early in the course of the proceedings to draw up a discovery plan addressing issues such as the scope of discovery, the need for expanded discovery of certain issues, clarification of claims and defenses, and other issues affecting and governing the...
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