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1 Donna Stienstra, Implementation of Disclosure in Federal District Courts, with Specific Attention to Courts' Responses to Selected Amendments to Federal Rule of Civil Procedure 26 1 (1994)

handle is hein.congcourts/ispecrs0001 and id is 1 raw text is: IMPLEMENTATION OF DISCLOSURE IN FEDERAL DISTRICT COURTS, WITH SPECIFIC ATTENTION TO COURTS' RESPONSES TO SELECTED AMENDMENTS TO FEDERAL RULE OF CIVIL PROCEDURE 26 DONNA STIENSTRA RESEARCH DIVISION FEDERAL JUDICIAL CENTER MARCH 1, 1994 On December 1, 1993, amendments to the Federal Rules of Civil Procedure went into effect. Among these, amendments to Rule 26 provide for three types of self-executing disclosure: initial disclosure; expert disclosure; and pretrial disclosure. The amended rule also provides for deferral of formal discovery until parties have met to discuss and plan discovery and to make or arrange for the exchange of disclosures. The proposed amendments to Rule 26 generated substantial controversy and an effort, ultimately unsuccessful, to persuade Congress to remove the proposed changes from the rule. The rule itself permits each court by local rule or order to exempt all cases or categories of cases from some of the rule's requirements and also permits parties to stipulate out of some of the requirements. Since the effective date of the amendments, interest has been high in the courts' responses to amended Rule 26. How many have opted out of the rule's requirements, as the practice has come to be known? The attached tables summarize the courts' responses to selected parts of the amended rule by showing which subdivisions of the rule are in effect in each district and which are not.1 The tables also show whether districts in which the federal rule is not in effect require disclosure through local rules or the Civil Justice Reform Act plan.2 As we will see, without this information a simple count of courts opting out of the Rule 26 amendments would understate the adoption of disclosure in the federal courts. To aid the user of these tables, in the sections below we briefly describe the rule amendments addressed by the tables, then note how the tables may be read, and finally identify some of the patterns in the courts' responses to Rule 26(a). Description of Selected Amendments to Federal Rule of Civil Procedure 26 Rule 26(a)(1), Initial Disclosure. Except as otherwise stipulated or as directed by order or local rule, a party must provide, without awaiting a discovery request, the follow- ing information at or within ten days of the meeting of counsel required by Rule 26(f): I The information is current as of February 23, 1994 and will be updated at an appropriate point. 2 The Civil Justice Reform Act of 1990 (28 U.S.C. §§ 471-482) requires each federal district court to adopt a cost and delay reduction plan by December 1, 1993. All courts have adopted a CJRA plan.

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