The New Federal Discovery Rules: 26(a)( 1 )&(2)-a Big Step in the Right Direction
| Jurisdiction | United States,Federal |
| Citation | Vol. 3 No. 1 Pg. 16 |
| Pages | 16 |
| Publication year | 1998 |
Ronald N. Boyce, Magistrate Judge.
Civil procedure is at the heart of the American dispute resolution system. It is designed to accommodate a wide variety of disputes and contentions and to provide a mechanism for their orderly and just resolution. The Federal Rules of Civil Procedure have provided the core process for effective disposition of civil litigation since their adoption in 1958.[1] But as litigation changes and application of the Rules has shown the need and requirement for improvements, changes have been made. Of special concern has been how to effectively expedite civil litigation, avoid quibbling contentiousness, gather all relevant information for determining the issues, and maintain a reasonable and affordable process. The Rules' purpose is just, speedy, and inexpensive resolution of disputes.[2] Obviously, this has not always been achieved.
One significant area of complaint is discovery abuse. Some say that a crisis exists in civil dispute resolution.[3] Discovery provisions were intended to reduce the element of surprise and to get all the facts out in order to expedite dispute resolution. In some cases, however, discovery is used as a weapon to exhaust a weaker adversary, to run up costs, and to turn pretrial proceedings into the real litigation.[4]
Obstreperous lawyers cause judges to expend excessive amounts of time intervening in discovery disputes.[5] The clamor for reform has grown louder, and not surprisingly, become a political issue.[6] In response, and also not surprisingly, Congress intervened in an effort to find an acceptable solution. In 1990 it enacted the Civil Justice Reform Act establishing pilot programs in federal district courts. The CJRA also required all federal district courts to implement a "civil justice expense and delay reduction plan" to "facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes."[7] The CJRA expressly directed "encouragement of cost effective discovery through voluntary exchange of information among litigants and their attorneys and through the use of cooperative discovery devices."[8] The CJRA went beyond discovery and provided directions in other litigation management areas. It did not dictate uniformity but set up a tolerance and range of flexibility for experimentation to see what worked and what did not, with allowance for local variations.[9] This theme has been prominent in the federal approach to correcting discovery abuse.[10] The standard is one of experimentation and local accommodation.
In August 1991 the Advisory Commit-tee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed amendments to the Federal Rules of Civil Procedure.[11] After significant debate, hearings, and discussion, the amendments were submitted to Congress for adoption, and became effective December 1, 1993.[12] Although the Rules contain several opt-out allowances permitting local variation,[13] the District of Utah adopted the Rules as proposed.
The 1993 Amendments to the Rules provide for three distinct forms of disclosure: Rule 26(a)(1) automatic disclosure, Rule 26(a)(2) disclosure of expert witnesses, and Rule 26(a)(3) pretrial disclosure.[14] In addition, Rule 26(e) requires supplementation of all disclosures. The new rules had their formulation in the scholarly work of a few distinguished and very experienced jurists.[15] Nevertheless, a debate was waged among all segments of the legal community before the adoption of the rules. The most controversial rule is 26(a)(1), the mandatory or automatic disclosure rule.[16] Based on the opt-out allowance in Rule 26(a)(1) and because of the controversial nature of the new rule, several federal districts elected to opt-out. In Utah, Rule 26(a)(1) was adopted on an experimental basis and now has been made a permanent part of the Utah federal practice.[17]
The adoption of Rule 26(a)(1) and an allied rule, Rule 26(f), imposes a higher duty to serve truth by assuring that facts pertinent to the dispute are disclosed. But Rule 26(a)(1) and the other disclosure rules are not requirements for general and unlimited discovery.[18] They address specific discovery areas. The game of hide and seek that often was the practice in the past has been eliminated. Gamesmanship is out.[19] The obligation exists to make full disclosure. Truth is paramount over advocacy.
When Mr. Anderson's talented scenario is carefully considered, what Nathan and Dick seek of Darrow and Spence is suppression of evidence and the corruption of truth. Although Darrow may not have been as sensitive to the paramountcy of truth at all times in his career, the actions of Darrow and Spence in the scenario were proper and in accord with ethics and the rules, as well as the service of justice and truth.[20] The adversary system in the discovery stage is subordinated to the obligation for truth.[21] The new rules demand a more professional posture but do not undermine any legitimate lawyer/client interest.
Rule 26(a)(1) is a legislatively directed standard for disclosure. The rule works in harmony with Rule 26(f), which mandates that counsel meet prior to the Rule 16 pretrial conference "to discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case" and also to arrange for the 26(a)(1) disclosures.[22] Counsel have the opportunity to work out their differences and arrive at a mutually agreeable discovery plan. Counsel can stipulate to many of the demands of the discovery process. Absent agreement by counsel, Rule 26(a)(1) requires automatic disclosure in four areas. First, the name, address and telephone number of all persons "likely" to have "discoverable information"[23] relevant to disputed facts [24] "alleged with particularity in the pleadings, identifying the subjects of the information." There is an incentive to plead with particularity to obtain greater automatic disclosure. The particularity of...
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