A Modest Reform for Federal Procedural Rulemaking

CARL TOBIAS [*] The Judicial Conference of the United States Advisory Committee on Civil Rules (the "Advisory Committee"), which has primary responsibility to study the Federal Rules of Civil Procedure (the "Federal Rules") and to formulate recommendations for improvement, recently developed a thorough package of revisions to the Federal Rules that govern discovery. [1] During April 2000, the United States Supreme Court promulgated essentially intact the set of amendments that the Advisory Committee had proposed. [2] Those changes became effective in December 2000. [3] The rule revision entities commissioned discovery studies, developed proposals, and solicited and considered extensive public input on the recommended alterations to the Federal Rules. Despite concerted effort, the efficacy of the new amendments remains unclear, partly because federal district courts have not actually applied them. The revisions, this deficiency in the amendment process, and prospects for its remediation warrant analysis. The efforts to revise the rules commenced several years ago. In 1996, the Advisory Committee appointed a Discovery Subcommittee that it asked to explore the prospect of additional changes to the Federal Rules' discovery provisions, a number of which the Supreme Court had amended as recently as 1993. [4] The Discovery Subcommittee investigated the necessity of further altering the discovery provisions, in part by commissioning several assessments that two expert entities conducted. One of these institutions was the Federal Judicial. Center (the "FJC"), the principal research arm of the federal courts. [5] The second body was the Institute for Civil Justice of the RAND Corporation (the "ICJ"), which had recently completed a comprehensive evaluation of the procedures for reducing expense and delay adopted and enforced by the ninety-four federal district courts under the Civil Justice Reform Act (the "CJRA") of 1990. [6] The FJC and the ICJ collected and analyzed considerable empirical data on the application an d operation of the 1993 revisions of the Federal Rules. [7] The Advisory Committee substantially relied on those studies in formulating a group of proposed amendments to the discovery rules for the consideration of the Judicial Conference Committee on Rules of Practice and Procedure (the "Standing Committee"), [8] which reviews proposals developed by the advisory committees on appellate, bankruptcy, civil, criminal, and evidentiary rules. The Standing Committee instituted few modifications to the Advisory Committee draft and published proposed revisions on which it sought public input. [9] The Standing Committee then evaluated the public comments, minimally changed the suggested alterations, and, in 1999, compiled a final package of proposed amendments for the Judicial Conference, the policymaking arm of the federal courts. [10] The Conference made one modification in the set that the Advisory Committee tendered [11] and submitted the group to the Supreme Court; [12] the Court promulgated the revisions without change in April 2000. [13] These amendments alter the present discovery regime in several significant ways. First, one of the 2000 Amendments imposing mandatory prediscovery, or automatic disclosure, requires parties to divulge less information than the 1993 version. [14] Moreover, the 2000 Amendments' automatic disclosure provision applies nationally; it thus eliminates the 1993 provision that authorized each of the ninety-four federal district courts to opt out by changing the strictures in the federal rule or by rejecting those requirements altogether. [15] The 2000 Amendments also narrow the scope of discovery that litigants have traditionally been able to secure. For many years, parties could acquire any information that was "relevant to the subject matter involved in the pending action." [16] The new version, however, restricts the scope of discovery to material that is "relevant to the claim or defense," and litigants can secure information that is relevant to the subject matter only after parties file motions showing good cause why they are entitled to broader discovery. …