What are the new rules?

• Author: Linder, Rex K.
• Position: It's a Whole New Ball Game: Playing by the New Civil Rules

The amendments to the Federal Rules of Civil Procedure that became effective December 1, 1993, work the most dramatic changes in federal litigation since the inception of the civil rules in 1938. During the development and evaluation of the amendments, many of the proposals were criticized by the bench and bar. Of greatest concern were those relating to discovery - changes that will have a dramatic effect on the defense counsel practice.

There was an attempt in Congress to block the mandatory disclosure provisions of new Rule 26(a)(1),(1) but Congress adjourned its first session in December 1993 without taking any final action.(2) Accordingly, the amendments took effect on December 1, 1993, and pursuant to Supreme Court order, they "shall govern all proceedings and civil cases thereafter commenced and, insofar as just and practicable, all proceedings and civil cases then pending."(3)

The mandatory disclosure provisions appear to be one of multiple efforts that have changed the procedural rules of litigation dramatically. Many federal district courts have developed civil justice expense and delay reduction plans under the Civil Justice Reform Act of 1990, and many of these plans contain disclosure requirements. It is possible for districts to opt-out of the disclosure provisions, and some have done this in order to preserve their own disclosure rules, and some simply have opted-out of disclosure entirely. Some states - most notably, Arizona - have modified their civil procedures rules in a variety of ways, principally focusing on perceived discovery abuses and expense.

Principal Changes

Although there are numerous amendments to the Federal Rules, the most dramatic are those altering the nature of discovery.

1. Rule 26(a)(1): Required Disclosures

   (Initial Disclosures)

   The most controversial amendment - new Rule 26(a)(1) - requires the early disclosure of certain categories of information without the opponent's serving written discovery. This concept has been discussed for more than a decade as a means to curb discovery abuse and control expense. According to the Committee Notes accompanying the new rule, which were prepared by the Judicial Conferences's Advisory Committee on Civil Rules, the "concepts of imposing a duty a disclosure" were postulated in two law review articles - one by Wayne D. Brazil, a federal magistrate judge who was a member of the Advisory Committee that proposed disclosure,(4) and the other by William W. Schwarzer, a senior federal district judge who now is Director of the Federal Judicial center.(5)

   The Committee Notes further state: "A major purpose of the revision is to accelerate the exchange of basic information about the case and to eliminate the paperwork involved in requesting such information, and the rule should be applied in a manner to achieve those objectives."(6)

   The disclosure requirement is automatic, not requiring service of interrogatories or requests to produce. The initial disclosure requires each party to provide the following categories of information:

   * The name, address and telephone number of each individual "likely to have discoverable information relevant to disputed facts alleged with particularity" in the pleadings, identifying the subject of the information.

   * A copy or description by category and location of all documents or tangible things in a party's control "that are relevant to disputed facts alleged with particularity in the pleadings."

   * A computation of any category of damages claimed by a party and providing access for inspection and copying of all non-privileged materials "on which such computation is based, including materials bearing on the nature and extent of injuries suffered."

   * Make available for inspection and copying any insurance agreement that could satisfy a judgment.

   The term "relevant," as used in the first two categories, is not defined in the rules. Rather, it is left to the extremely broad interpretations found in judicial decisions.(7)

   The rule provides that the extent of a party's disclosure obligation is dependent on the allegations of the complaint. Recognizing the potential for uncertainty and confusion, the revision attempts to relate the nature of the disclosure to the degree of specificity and clarity of an opposing party's allegations. The Committee Notes provide an illustration:

   Broad, vague and conclusionary allegations sometimes tolerated in notice pleading - for example, the assertion that a product with many component parts is defective in some unspecified manner - should not impose upon responding parties the obligation at that point to search for and identify all persons possible involved in, or all documents affecting, the design, manufacture and assembly of the product.

   Rule 26(c) remains the provision permitting application for protective orders relating to discovery. In seeking a protective order, however, it is necessary for movants to certify that they have conferred or attempted to confer with the other parties in an effort to resolve the dispute without court action...