|
Litigation Publications HAVE NEW RULES CHANGED THE BOUNDARIES OF DISCOVERY? Courts are mapping out new territory In 1993, the U.S. Supreme Court amended Rule 26(a) of the Federal Rules of Civil Procedure to require mandatory disclosure of the identities of all people and documents "relevant to disputed facts alleged with particularity in the pleadings." The requirement applied to all people and documents "whether or not supportive of [a party's] contentions in the case." Potentially harmful information was to be revealed even when opposing counsel had not asked for it. The rule came to be known in some circles as the "heartburn rule." But it proved helpful to many plaintiffs, compelling disclosure of potentially harmful information from corporations, insurance companies, and other defendants. U.S. Supreme Court Justice Antonin Scalia called this radical shift of the discovery burden "potentially disastrous."1 He said the shift would probably increase discovery burdens on district judges when parties litigate what is "relevant" to "disputed facts." Scalia also claimed that it would place an intolerable strain on lawyers' ethical duty to represent their clients and not assist the other side. To mollify him and others who shared his viewpoint, the amendments provided that any federal judicial district could opt out of the mandatory-disclosure requirements. Nearly half did so, balkanizing the federal districts on this crucial requirement.2 In 2000, the committee retreated from the bold moves of 1993, amending Rule 26(a) to limit mandatory disclosure. Under the new amendment, a party is required to disclose information about people, documents, and tangible things that it "may use to support its claims or defenses, unless solely for impeachment." Advisory Committee on Civil Rules notes explained that "the scope of the disclosure obligation is narrowed to cover only information that the disclosing party may use to support its position." The committee defined the term "use" to include presentation at a pretrial conference, in discovery (apart from a response to a discovery request), in support of a motion, or at trial. This obligation includes disclosure of all documents that a party intends to use in questioning witnesses during depositions, and it attaches to witnesses and documents that a party intends to use "if the need arises." Accordingly, counsel may object to
Any pretrial objections (and, in certain circumstances, trial objections) may be cured if opposing counsel supplements disclosure as provided in Rule 26(e). Rule 26(a) is no longer subject to an opt-out provision. The 2000 amendment invalidates not only formal local rules but also a judge's or a court's informal "standing" orders that purport to create exemptions from - or limit or expand - the mandated disclosure. Case-specific orders remain proper, however, and are expressly required if a party successfully objects to the appropriateness of the initial disclosure. The parties can also agree to forgo this disclosure. But even when they do, the court, under Rule 16, can order exchange of similar information in managing the case. A party can object to a Rule 26(a) disclosure as inappropriate but must raise that objection during the Rule 26(f) scheduling conference and include the objection in the Rule 26(f) report. If the party does not object, the information must be disclosed within 14 days. A party can still file discovery motions to obtain what opposing counsel is not required to disclose under Rule 26(a). Furthermore, Rule 26(e) provides that parties are required to make supplemental Rule 26(a) disclosures in some circumstances - as well as supplemental disclosures in response to interrogations, requests for production, and requests for admission - if the disclosure is incomplete or incorrect, unless otherwise disclosed during discovery or in writing. Compliance with mandatory disclosure can have a salutary effect. According to a study by the Federal Judicial Center, "[I]nitial disclosure decreased litigation expense, time from filing to disposition, the amount of discovery, and the number of discovery disputes . . . [and] increased overall procedural fairness, the fairness of the case outcome, and the prospects of settlement."3 To date, few courts have discussed the scope of mandatory disclosure following the 2000 amendments. In the cases that have addressed the topic, courts have held that:
Failure to disclose Failing to disclose information can have dire consequences. Rule 37(c)(1), as amended, provides that a party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on motion any witness or information not so disclosed. The court may also impose other sanctions under the rule, including
Beyond all these drastic remedies, the court can award reasonable expenses, including attorney fees. To avoid penalty, counsel who fails to disclose should supplement disclosures promptly, as provided in Rule 26(e). Courts have imposed Rule 37 sanctions in implementing the 2000 amendments. In Biltrite Corp. v. World Road Markings, Inc., the court held that the failure of a corporate defendant's president to disclose his true identity and home address, without substantial justification, warranted sanctions. The court noted that the false and misleading information in the mandatory disclosure frustrated the obvious purpose of Rule 26(a)(1)(A): "to give the opposing party information as to the identification and location of persons with knowledge so that they can be contacted in connection with the litigation, either for purposes of serving a proposed amended complaint . . . or for being interviewed or for being deposed or for doing background investigation." In Nicholas v. Pennsylvania State University, the court excluded the plaintiff's videotape evidence that had not been timely disclosed, noting that Rule 37(c)(1) was amended in 2000 to make clear that courts may impose sanctions when a party fails to comply with the duty to supplement discovery. The court determined that the supplementation in Nicholas came too late and that the defendant's pretrial preparations would have been compromised if the videotapes were allowed. Judges must consider four factors when determining whether to exclude a party's evidence for failure to comply with discovery obligations:
Scope of discovery For more than six decades, the scope of discovery in federal cases has included any matter "relevant to the subject matter involved in the pending action." The 2000 amendment to Rule 26(b)(1) altered that standard, limiting the scope of discovery to any matter "relevant to the claim or defense of any party." A court will order discovery of any evidence "relevant to the subject matter involved in the action" only on a showing of good cause. According to committee notes, the amendment is meant to limit discovery to matters raised in the pleadings - making it clear that parties may not engage in fishing expeditions or use discovery to develop new claims or defenses not already identified in the pleadings - and to involve the court more actively in regulating the breadth of sweeping or contentious discovery. The committee notes acknowledge that the "dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision." According to one commentator, however, this amendment "does not effect a dramatic change in the scope of discovery. In part, it is designed to involve judges in cases that present problems with the scope of discovery. The present standard - 'relevant to the claim or defense of any party' - is still a very broad one." Nevertheless, the new standard has been criticized. Unlike the original standard, it is not defined by any established body of law. The concern is that the amended standard will spawn innumerable discovery disputes, squandering judicial energy. Some fear that it will undermine the traditional notice-leading regime that the advisory committee established in 1938 and that federal judges have steadfastly maintained for more than 60 years. One trial judge who opposed this change predicted that it would take 10 years of litigation to determine how to apply amended Rule 26(b). A committee member who also opposed it wrote, I fear that the amendment may lead to little positive change by way of curbing cost and excess in federal discovery, while increasing purely procedural contention over the multiple and vague terms in the revised rule. These fears are partly because I see the amendment, seemingly aimed at making discovery more targeted, as fitting uneasily within the general federal regime of liberal notice pleading and still-broad discovery. The new standard may promote ancillary litigation over the scope of discovery, but there are few reported decisions on the issue to date. As a practical matter, the standard may encourage plaintiff attorneys to draft fact-based pleadings with broad allegations to gain access to a wider range of discovery. Such pleadings may foster more Rule 11 and Rule 12(b) motion practice. Judges involved in the cases that have discussed the new standard have offered differing views of its effect. A Pennsylvania court said that the scope of discovery "has been narrowed by some degree, and . . . relevance is more closely tied to the actual allegations contained in the complaint." But an Illinois judge wrote, "It is not necessary for every discovery request to have some reference point in the pleadings." Noting that the meaning of the amendment will only "be settled over time," an Indiana judge observed that even though "a narrowing has taken place . . . [n]one of the decisions suggest that amended Rule 26(b)(1) will bring about a dramatic effect on the scope of discovery." Indeed, some judges have taken a liberal view of discovery despite the amendment; "Even after the recent amendments . . . courts employ a liberal discovery standard. . . . The minimal showings of relevance and admissibility hardly pose much of an obstacle for an inquiring party to overcome." Even under the amended rule, relevance is broadly construed, and a request for discovery should be considered relevant if there is "any possibility" that the information sought may be relevant to the claim or defense of any party. . . . When the discovery sought appears relevant on its face, the party resisting the discovery has the burden of establishing the lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Fed. R. Civ. P.26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Thompson v. Department of Housing and Urban Development offers a comprehensive analysis of the amended standard. The court noted that although the pleadings are the most valuable reference for determining relevance, they are only a starting point; information not directly pertinent to the incident that led to the lawsuit may nevertheless be relevant to the claims or defenses. The court suggested that a practical approach for implementing the new standard is to focus more on whether the requested discovery makes sense under Rule 26(b)(2) than on a brightline distinction between the old rule and the new one. Accordingly, counsel should not take an overly rigid view of the narrowed scope of discovery. After an exhaustive review of these and other cases, one analyst concluded that:
To try to make sense of all this, a commentator suggested the following test: "An item of information sought is relevant to a claim or defense if the requesting party can articulate a logical relationship between the information sought and possible proof or refutation of the claim or defense at trial." Few decisions define the "good cause" required for an order allowing discovery under the old standard of "any matter relevant to the subject matter involved in the action." They reveal no pattern except that mere speculation about what discovery might turn up does not suffice. A Prudent approach for advocating good cause under amended Rule 26(b)(1) is to show a reasonable need for the material by articulating why the information is important; why it is at least potentially likely to emerge from the requested discovery; and why the court's permitting discovery will be consistent with full factual development and accurate adjudication, while avoiding discovery vices like harassment and unjustified, increased cost and delay. Even if the requesting party makes this showing, the opponent may avoid discovery if it demonstrates that the burden of subject matter discovery outweighs its benefit and seeks a protective order where appropriate. Limits on depositions Amended Rule 30(d)(2) limits a deposition to "one day of seven hours," unless the court has authorized otherwise; the parties have stipulated otherwise; additional time is needed for a fair examination; or the deponent, someone else, or another circumstance impedes or delays the examination of the witness. According to the committee notes, reasonable breaks during the deposition do not count toward the seven hours, and "preoccupation with timing is to be avoided." Factors that justify longer depositions include questioning
In Sabre v. First Dominion Capital, the court considered Rule 30(b)(6) (which provides for the deposition of a representative designated by an organization) and whether the time limit applies cumulatively to testimony provided by a witness who was deposed both in an individual capacity and as a corporate representative. The court reasoned that if only one seven-hour period applied, there would be substantial potential for unduly limiting the time to depose the witness. It held that two independent seven-hour periods apply, because any entity that wanted to limit the testimony of an individual could accomplish that goal by designating the individual as a 30(b)(6) witness; under defendant's interpretation, every minute spent conducting the 30(b)(6) deposition would be deducted from the time available to probe the witness's individual knowledge. Conversely, defendants' interpretation would also permit an entity to curtail 30(b)(6) examinations by designating as a 30(b)(6) witness a person who previously testified for six hours as an individual and has only one hour left on his or her presumptive seven-hour clock. An interpretation that would lead to such absurd results must be rejected. The court was quick to note, however, that attorneys do not have carte blanche to depose a witness for seven hours as an individual and another seven hours as a 30(b)(6) witness: In the case of many closely held corporations, the knowledge of an individual concerning a particular subject also constitutes the total knowledge of the entity. In such a situation, the witness could simply adopt the testimony he or she provided in a former capacity, thereby obviating the need for a second deposition. In addition, if the questioning at any deposition becomes repetitive or is otherwise conducted in an oppressive manner, the aggrieved party can apply for a protective order. Another court, in Miller v. Waseca Medical Center, followed Sabre in two consolidated cases where the question was whether one seven-hour period of two applied to one witness deposed in both cases. "The mere fact that these cases might have proceeded separately does not establish that 14 hours is the appropriate length for a deposition of a witness common to both cases," the court held. "By the same logic, the fact that the two cases have now been consolidated into one also does not establish that it is proper that no deposition last more than seven hours." The court relied on advisory committee notes in determining whether the witness should be required to submit to questioning that exceeds seven hours: "[T]he 2000 amendments suggest some of the factors to consider, but their most important advice is in a single sentence: '[p]reoccupation with timing is to be avoided." One Trial Court Judge Predicted That It Would Take 10 Years Of Litigation To Determine How To Apply Amended Rule 26(B) In Miller, the defendants contended that they needed additional time to take depositions because the plaintiffs tended to provide narrative answers to yes-or-no questions. The defendants also complained about the length of time that elapsed between questions and answers. (The deposition transcript was prepared in such a way as to permit an analysis of the elapsed time.) The court noted that "it remains unclear precisely why the amendment is necessary at this particular time" because "when the length of depositions creates difficulties, judges can invoke Federal Rule 30 or match temporal restrictions with a specific lawsuit's requirements in pretrial conferences." Still, it recognized its "duty to enforce [the rule] now that it has been adopted." After an exhaustive analysis of the deposition record, the Miller court held that additional time was needed for a fair examination of the deponent and that circumstances had impeded or delayed the deposition. The defendants sought an order that each plaintiff submit to two seven-hour depositions. The court declined to issue an order for a specific number of hours, and it admonished the parties to refrain from repetition and "unnecessary colloquy" and to answer questions directly. The court also observed that Rules 30(d) and 37 protected each party in the event of abuse. Strategies for adhering to the seven-hour limit include the following:
The amendment to Rule 30(d)(1) provides that any objection during a deposition must be stated concisely in a nonargumentative and nonsuggestive manner. The deponent's attorney may instruct him or her not to answer only when necessary to preserve a privilege, enforce a court-directed limitation, or present a motion under Rule 30(d)(4). The rule provides relief if a deposition is conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent. Expenses may be awarded under Rule 37(a)(4). In Miller, the court referred to amended Rule 30(d)(1). The defendants contended that the plaintiff attorney "inappropriately intruded on the depositions by making personal remarks and ad hominem attacks on opposing counsel" and sought relief under this amendment. The court held that "as a procedural matter, a party may instruct a witness not to answer a question at a deposition under limited circumstances, but as a substantive matter, the party does so at its own peril if it is wrong on the merits of its objection." As a practical matter, amended Rule 30(d)(1) merely codifies a substantial body of case law limiting objections at depositions. It also provides national uniformity on the issue; a rule-based rather than case-based response to obstreperous counsel at a deposition; and relief for improper objections if the court finds that any impediment, delay, or other similar conduct has frustrated the fair examination of the deponent. As case law develops, the contours of the 2000 amendments will be shaped with greater precision. The advisory committee notes articulate the principle underlying all the rule changes: "It is expected that in most instances the parties . . . will make reasonable accommodations to avoid the need for resort to the court." This approach benefits the court as well as the litigants. One grateful federal judge commented, "Because the parties resolve the problem, I'm perfectly happy under these circumstances with the amendments." Whenever possible, resolve by stipulation the various issues these amendments present. When that approach fails, take advantage of the amendments; use court intervention when necessary; and, when appropriate, seek sanctions under Rule 37. Notes 1 46 F.R.D. 501, 510 (1993). Reprinted with permission of Trial Magazine. |
