Solving the corporation's dilemma: how to comply with mandatory disclosure.

• Author: Leibson, Russell

CORPORATIONS and their counsel face special problems in complying with the new disclosure rules mandated by the Federal Rules of Civil Procedure, particularly in complex litigation and especially with respect to disclosure of documents. While there are problems, there also is a workable strategy for prepositioning the corporation to meet the mandatory disclosure obligations economically and efficiently.

In 1993, the Federal Rules of Civil Procedure were amended to require mandatory prediscovery disclosure of witnesses, documents and certain other information. The new rules apply to all civil actions filed after December 1, 1993, and, to the extent practicable, to cases than pending. Proponents of the new disclosure regime touted it as a means of dealing with problems of excessive cost and delay in the disposition of civil cases in the federal courts.

The mandatory disclosure provisions added to Rule 26 were the most controversial and hotly debated of the 1993 rules changes. According to the Notes of the Judicial Conference Advisory Committee on Civil Rules, "A major purpose of the revision [of Rule 26] is to accelerate the exchange of information about the case and to eliminate the paperwork in requesting such information, and the rule should be applied in a manner to achieve those objectives."(1) Although widely heralded as portending a sea change in discovery practice in the federal courts, many practitioners paid little heed when the new rules were promulgated. And now, despite a year and a half of experience under the new rules, it is still too early to draw any hard conclusions as to whether the drafters' goals of reducing litigation costs and delay have been, or can be, achieved.

In July of 1994 a subcommittee of the American Bar Association Section of Litigation noted that the rules had not been in operation long enough to have worked their way into the fabric of federal civil litigation. "Thus," the subcommittee's report stated, "the jury is still 'out.'"(2) The same probably can be said in July of 1995.

New Rule 26(a)(1) begins by stating, "Except to the extent otherwise stipulated or directed by order or local rule ..." Taking advantage of the discretion granted them, about half of the 94 federal district courts have chosen to opt-out of the mandatory disclosure provisions, according to a survey as of March 1, 1995, by the Research Division of the Federal Judicial Center.(3) But of the 49 districts that have not implemented disclosure, five require initial disclosure under local rules, orders or plans adopted pursuant to the Civil Justice Reform Act of 1991 (CJRA), 28 U.S.C. [sections][sections] 471-482, and 15 districts give individual judges authority to require initial disclosure. In only 28 districts, the survey states, are all cases routinely exempt from rules on disclosure.

Of the 14 largest districts in terms of the number of judges, six have implemented Rule 26(a)(1), two require disclosure by local rule or CJRA plan, four authorize individual judges to order it in specific cases, and two opted out.

Focusing on Rule 26(a)(1), six of the 14 largest districts have implemented this subsection of the rule. Two additional courts require initial disclosure by local rule or the CJRA plan.

Although there are many similarities among the mandatory disclosure provisions implemented by various courts, there also are sharp differences--a patchwork picture.(4) Thus, practitioners and their corporate clients now and for the foreseeable future face a patchwork of different discovery obligations, depending on the federal district court in which the case is venued, as well perhaps as the individual judges to which a case is assigned. Indeed, the ABA report concludes that "at the present time and until at least 1999, continued variations among districts are expected to create a variety of types, amounts and scopes of mandatory disclosure."

The Federal Judicial Center survey summarizes the situation in this table, which also includes implementation of Rule 26(a)(2), disclosure of expert testimony; Rule 26(a)(3), pretrial disclosure of evidence; Rule 26(d), timing and sequence of discovery; and Rule 26(f), meeting of counsel and written discovery plan:

Table 1

In general, Table 1 suggests the classifying courts as "opting in" and "opting out" of Rule 26's requirements over-simplifies their responses to the amended rule and may understate the extent to which parties will encounter disclosure requirements in federal courts. Rule 26(a)(1), for example, has been implemented in only half the districts, but those who practice in federal district court may encounter initial disclosure requirements in an additional twenty-one courts either upon order of the judge or through other local provisions for disclosure.

Number of Courts in Which Specified Subsections of Federal Rule of Civil

Procedure 26 Are or Are Not in Effect

Nature of Court's Rule Rule Rule Rule Rule Response 26(a)(1) 26(a)(2) 26(a)(3) 26(d) 26(f) In effect 45 74 72 54 62 In effect with a 6 7 1 0 0 significant revision Not in effect 49 20 22 39 31 But substantially 5 4 2 4 2 provided for by CJRA plan or local rule But the judge may order 15 3 3 4 6 in the specific...