29–008 

108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–684 

PROVIDING FOR CONSIDERATION OF H.R. 4571, LAWSUIT 

ABUSE REDUCTION ACT OF 2004 

SEPTEMBER 13, 2004.—Referred to the House Calendar and ordered to be printed 

Mr. SESSIONS, from the Committee on Rules, 

submitted the following 

R E P O R T 

[To accompany H. Res. 766] 

The Committee on Rules, having had under consideration House 

Resolution 766, by a nonrecord vote, report the same to the House 

with the recommendation that the resolution be adopted. 

SUMMARY OF PROVISIONS OF THE RESOLUTION

The resolution provides for the consideration of H.R. 4571, the 

Lawsuit Abuse Reduction Act of 2004, under a modified closed rule. 

The rule provides one hour of debate in the House equally divided 

and controlled by the chairman and ranking minority member of 

the Committee on the Judiciary. 

The rule waives all points of order against consideration of the 

bill. The rule provides that the bill shall be considered as read for 

amendment. The rule further provides that the amendment in the 

nature of a substitute recommended by the Committee on the Judiciary now printed in the bill shall be considered as adopted. 

The rule makes in order the amendment printed in this report, 

if offered by Representative Turner of Texas or his designee, which 

shall be considered as read, and which shall be debatable for 40 

minutes equally divided and controlled by the proponent and an opponent. The rule waives all points of order against the amendment 

printed in this report. 

Finally, the rule provides one motion to recommit with or without instructions. 

SUMMARY OF AMENDMENT MADE IN ORDER

(Summary derived from information provided by the amendment 

sponsor.) 

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1. Turner (TX): Amendment in the Nature of a Substitute. Section 1. Sanctions for Frivolous Pleading—Imposes mandatory sanctions on frivolous pleadings (first violation—required payment of 

costs and attorneys fees; second violation—adds that the attorney 

is held in contempt and monetary fine; third violation—adds referral to state bar for disciplinary proceedings). 

Section 2. Sanctions for Frivolous Conduct During Discovery— 

Imposes mandatory sanctions on discovery violations (first violation—required payment of costs and attorneys fees; second violation—adds that the attorney is held in contempt and monetary 

fine; third violation—adds referral to state bar for disciplinary proceedings). 

Section 3. Ban on Frivolous Concealment of Unlawful Conduct— 

Limits the ability of corporate wrongdoers to conceal any conduct 

harmful to public welfare by requiring that court records may not 

be sealed unless the court first finds that such sealing is justified. 

Section 4. Enhanced Sanctions for Document Destruction—Provides that parties which destroy documents in connection with civil 

proceedings shall be punished with mandatory civil sanctions, held 

in contempt of court, and referred to state bar for disciplinary proceedings. 

Section 5. Expelled Disposition of Frivolous and other Lawsuits 

in State Courts—Imposes the Civil Justice Reform Act, which has 

proved successful in federal courts, to the state courts in order to 

speed up the pretrial process and weed out junk lawsuits. (40 minutes). 

TEXT OF AMENDMENT MADE IN ORDER

Strike all after the enacting clause and insert the following: 

SECTION 1. ‘‘THREE STRIKES AND YOU’RE OUT’’ FOR FRIVOLOUS 

PLEADINGS. 

(a) SIGNATURE REQUIRED.—Every pleading, written motion, and 

other paper in any action shall be signed by at least 1 attorney of 

record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper 

shall state the signer’s address and telephone number, if any. An 

unsigned paper shall be stricken unless omission of the signature 

is corrected promptly after being called to the attention of the attorney or party. 

(b) CERTIFICATE OF MERIT.—By presenting to the court (whether 

by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is 

certifying that to the best of the person’s knowledge, information 

and belief, formed after an inquiry reasonable under the circumstances— 

(1) it is not being presented for any improper purpose, such 

as to harass or to cause unnecessary delay or needless increase 

in the cost of litigation; 

(2) the claims, defenses, and other legal contentions therein 

are warranted by existing law or by a non frivolous argument 

for the extension, modification, or reversal of existing law or 

the establishment of new law; and 

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are reasonable 

based on a lack of information or belief. 

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(c) MANDATORY SANCTIONS.— (1) FIRST VIOLATION.—If, after notice and a reasonable opportunity to respond, a court, upon motion or upon its own initiative, determines that subsection (b) has been violated, the 

court shall find each attorney or party in violation in contempt 

of court and shall require the payment of costs and attorneys 

fees. The court may also impose additional appropriate sanctions, such as striking the pleadings, dismissing the suit, and 

sanctions plus interest, upon the person in violation, or upon 

both such person and such person’s attorney or client (as the 

case may be). 

(2) SECOND VIOLATION.—If, after notice and a reasonable opportunity to respond, a court, upon motion or upon its own initiative, determines that subsection (b) has been violated and 

that the attorney or party with respect to which the determination was made has committed one previous violation of subsection (b) before this or any other court, the court shall find 

each such attorney or party in contempt of court and shall require the payment of costs and attorneys fees, and require 

such person in violation (or both such person and such person’s 

attorney or client (as the case may be)) to pay a monetary fine. 

The court may also impose additional appropriate sanctions, 

such as striking the pleadings, dismissing the suit and sanctions plus interest, upon such person in violation, or upon both 

such person and such person’s attorney or client (as the case 

may be). 

(3) THIRD AND SUBSEQUENT VIOLATIONS.—If, after notice and 

a reasonable opportunity to respond, a court, upon motion or 

upon its own initiative, determines that subsection (b) has 

been violated and that the attorney or party with respect to 

which the determination was made has committed more than 

one previous violation of subsection (b) before this or any other 

court, the court shall find each such attorney or party in contempt of court, refer each such attorney to one or more appropriate State bar associations for disciplinary proceedings, require the payment of costs and attorneys fees, and require 

such person in violation (or both such person and such person’s 

attorney, or client (as the case may be)) to pay a monetary fine. 

The court may also impose additional appropriate sanctions, 

such as striking the pleadings, dismissing the suit, and sanctions plus interest, upon such person in violation, or upon both 

such person and such person’s attorney or client (as the case 

may be). 

(4) APPEAL; STAY.—An attorney has the right to appeal a 

sanction under this subsection. While such an appeal is pending, the sanction shall be stayed. 

(5) NOT APPLICABLE TO CIVIL RIGHTS CLAIMS.—Notwithstanding subsection (d), this subsection does not apply to an 

action or claim arising out of Federal, State, or local civil 

rights law or any other Federal, State, or local law providing 

protection from discrimination. 

(d) APPLICABILITY.—Except as provided in subsection (c)(5), this 

section applies to any paper filed on or after the date of the enactment of this Act in— 

(1) any action in Federal court; and 

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(2) any action in State court, if the court, upon motion or 

upon its own initiative, determines that the action affects 

interstate commerce. 

SEC. 2. ‘‘THREE STRIKES AND YOU’RE OUT’’ FOR FRIVOLOUS CONDUCT 

DURING DISCOVERY. 

(a) SIGNATURES REQUIRED ON DISCLOSURES.—Every disclosure 

made pursuant to subdivision (a)(1) or subdivision (a)(3) of Rule 26 

of the Federal Rules of Civil Procedure or any comparable State 

rule shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party’s address. 

The signature of the attorney or party constitutes a certification 

that to the best of the signer’s knowledge, information, and belief, 

formed after a reasonable inquiry, the disclosure is complete and 

correct as of the time it is made. 

(b) SIGNATURES REQUIRED ON DISCOVERY.— (1) IN GENERAL.—Every discovery request, response, or objection made by a party represented by an attorney shall be 

signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. An unrepresented 

party shall sign the request, response, or objection and state 

the party’s address. The signature of the attorney or party constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is: 

(A) consistent with the applicable rules of civil procedure 

and warranted by existing law or a good faith argument 

for the extension, modification, or reversal of existing law; 

(B) not interposed for any improper purpose, such as to 

harass or to cause unnecessary delay or needless increase 

in the cost of litigation; and 

(C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had 

in the case, the amount in controversy, and the importance 

of the issues at stake in the litigation. 

(2) STRICKEN.—If a request, response, or objection is not 

signed, it shall be stricken unless it is signed promptly after 

the omission is called to the attention of the party making the 

request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed. 

(c) MANDATORY SANCTIONS.— 

(1) FIRST VIOLATION.—If without substantial justification a 

certification is made in violation of this section, the court, upon 

motion or upon its own initiative, shall find each attorney or 

party in contempt of court and shall require the payment of 

costs and attorneys fees. The court may also impose additional 

sanctions, such as imposing sanctions plus interest or imposing 

a fine upon the person in violation, or upon such person and 

such person’s attorney or client (as the case may be). 

(2) SECOND VIOLATION.—If without substantial justification a 

certification is made in violation of this section and that the attorney or party with respect to which the determination is 

made has committed one previous violation of this section before this or any other court, the court, upon motion or upon its 

own initiative, shall find each attorney or party in contempt of 

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court and shall require the payment of costs and attorneys 

fees, and require such person in violation (or both such person 

and such person’s attorney or client (as the case may be)) to 

pay a monetary fine. The court may also impose additional 

sanctions upon such person in violation, or upon both such person and such person’s attorney or client (as the case may be). 

(3) THIRD AND SUBSEQUENT VIOLATIONS.—If without substantial justification a certification is made in violation of this section and that the attorney or party with respect to which the 

determination is made has committed more than one previous 

violation of this section before this or any other court, the 

court, upon motion or upon its own initiative, shall find each 

attorney or party in contempt of court, shall require the payment of costs and attorneys fees, require such person in violation (or both such person and such person’s attorney or client 

(as the case may be)) to pay a monetary fine, and refer such 

attorney to one or more appropriate State bar associations for 

disciplinary proceedings. The court may also impose additional 

sanctions upon such person in violation, or upon both such person and such person’s attorney or client (as the case may be). 

(4) APPEAL; STAY.—An attorney has the right to appeal a 

sanction under this subsection. While such an appeal is pending, the sanction shall be stayed. 

(d) APPLICABILITY.—This section applies to any paper filed on or 

after the date of the enactment of this Act in— 

(1) any action in Federal court; and 

(2) any action in State court, if the court, upon motion or 

upon its own initiative, determines that the action affects 

interstate commerce. 

SEC. 3. BAN ON CONCEALMENT OF UNLAWFUL CONDUCT. 

(a) IN GENERAL.—A court may not order that a court record be 

sealed or subjected to a protective order, or that access to that 

record be otherwise restricted, unless the court makes a finding of 

fact in writing that identifies the interest that justifies the order 

and that determines that the order is no broader than necessary 

to protect that interest. 

(b) APPLICABILITY.—This section applies to any court record, including a record obtained through discovery, whether or not formally filed with the court. 

SEC. 4. ENHANCED SANCTIONS FOR DOCUMENT DESTRUCTION. 

(a) IN GENERAL.—Whoever influences, obstructs, or impedes, or 

endeavors to influence, obstruct, or impede, a pending court proceeding through the intentional destruction of documents sought in, 

and highly relevant to, that proceeding— 

(1) shall be punished with mandatory civil sanctions of a degree commensurate with the civil sanctions available under 

Rule 37 of the Federal Rules of Civil Procedure, in addition to 

any other civil sanctions that otherwise apply; and 

(2) shall be held in contempt of court and, if an attorney, referred to one or more appropriate State bar associations for 

disciplinary proceedings. 

(b) APPLICABILITY.—This section applies to any court proceeding 

in any Federal or State court. 

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SEC. 5. EXPEDITED DISPOSITION OF FRIVOLOUS AND OTHER LAWSUITS. 

(a) IN GENERAL.—For each State, each judicial district in the 

State shall, within 2 years of the date of the enactment of this Act, 

develop and implement a civil justice expense and delay reduction 

plan and submit it to the appropriate governing body of the State. 

The governing body shall make the plan available to the public. 

(b) PRINCIPLES.—Each plan required by subsection (a) shall apply 

to actions in State court that affect interstate commerce and any 

other actions that the governing body considers appropriate. The 

plan shall be developed and implemented with regard to the following principles: 

(1) Systematic, differential treatment of civil cases that tailors the level of individualized and case specific management 

to such criteria as case complexity, the amount of time reasonably needed to prepare the case for trial, and the judicial and 

other resources required and available for the preparation and 

disposition of the case. 

(2) Early and ongoing control of the pretrial process through 

involvement of a judicial officer in— 

(A) assessing and planning the progress of a case; 

(B) setting early, firm trial dates, such that the trial is 

scheduled to occur within eighteen months after the filing 

of the complaint, unless a judicial officer certifies that— 

(i) the demands of the case and its complexity make 

such a trial date incompatible with serving the ends of 

justice; or 

(ii) the trial cannot reasonably be held within such 

time because of the complexity of the case or the number or complexity of pending criminal cases; 

(C) controlling the extent of discovery and the time for 

completion of discovery, and ensuring compliance with appropriate requested discovery in a timely fashion; and 

(D) setting, at the earliest practicable time, deadlines for 

filing motions and a time framework for their disposition. 

(3) For all cases that the court or an individual judicial officer determines are complex and any other appropriate cases, 

careful and deliberate monitoring through a discovery-case 

management conference or a series of such conferences at 

which the presiding judicial officer— 

(A) explores the parties’ receptivity to, and the propriety 

of, settlement or proceeding with the litigation; 

(B) identifies or formulates the principal issues in contention and, in appropriate cases, provides for the staged 

resolution or bifurcation of issues for trial consistent with 

Rule 42(b) of the Federal Rules of Civil Procedure; 

(C) prepares a discovery schedule and plan consistent 

with any presumptive time limits that a district court may 

set for the completion of discovery and with any procedures a district court may develop to— 

(i) identify and limit the volume of discovery available to avoid unnecessary or unduly burdensome or 

expensive discovery; and 

(ii) phase discovery into two or more stages; and 

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(D) sets, at the earliest practicable time, deadlines for 

filing motions and a time framework for their disposition. 

(4) Encouragement of cost-effective discovery through voluntary exchange of information among litigants and their attorneys and through the use of cooperative discovery devices. 

(5) Conservation of judicial resources by prohibiting the consideration of discovery motions unless accompanied by a certification that the moving party has made a reasonable and good 

faith effort to reach agreement with opposing counsel on the 

matters set forth in the motion. 

(6) Authorization to refer appropriate cases to alternative 

dispute resolution programs that— 

(A) have been designated for use in a district court; or 

(B) the court may make available, including mediation, 

minitrial, and summary jury trial. 

(c) TECHNIQUES.—In developing the plan required by subsection 

(a), a judicial district shall consider and may include the following 

techniques: 

(1) A requirement that counsel for each party to a case jointly present a discovery-case management plan for the case at 

the initial pretrial conference, or explain the reasons for their 

failure to do so. 

(2) A requirement that each party be represented at each 

pretrial conference by an attorney who has the authority to 

bind that party regarding all matters previously identified by 

the court for discussion at the conference and all reasonably related matters. 

(3) A requirement that all requests for extensions of deadlines for completion of discovery or for postponement of the 

trial be signed by the attorney and the party making the request. 

(4) A neutral evaluation program for the presentation of the 

legal and factual basis of a case to a neutral court representative selected by the court at a nonbinding conference conducted 

early in the litigation. 

(5) A requirement that, upon notice by the court, representatives of the parties with authority to bind them in settlement 

discussions be present or available by telephone during any 

settlement conference. 

(6) Such other features as the judicial district considers appropriate. 

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