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Civil Procedure Fall 2014

Mandatory Disclosures Under Rule 26: Controversy and Amendments.

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In 1993, Rule 26 was amended to “impose[] on parties a duty to disclose, without awaiting formal discovery requests, certain basic information.” Fed. R. Civ. P. 26 advisory committee’s note (1993). However, this amendment was not without controversy among judges, scholars, and practitioners. Compare William W. Schwarzer, The Federal Rules, The Adversary Process, and Discovery Reform, 50 U. Pitt. L. Rev. 703, 722 (1989) (disclosure “would eliminate much of the present game playing that results from excessive discovery demands and evasive responses. . . . There would be no occasion to engage in harassment or obstruction in the disclosure phase of discovery because parties will know what is expected.”) with Communication From The Chief Justice Of The United States Transmitting Amendments To The Fed. Rules Of Civil Procedure And Forms, 146 F.R.D. 401, 510 (Apr. 22, 1993) (Scalia, J., dissenting) (“The proposed new regime does not fit comfortably within the American judicial system, which relies on adversarial litigation to develop the facts before a neutral decisionmaker. By placing upon lawyers the obligation to disclose information damaging to their clients . . . the new Rule would place intolerable strain upon lawyers’ ethical duty to represent their clients and not to assist the opposing side.”). Much of the debate centered on the likelihood that disclosures would lead to increased settlements. See, e.g., Amy Farmer & Paul Pecorino, Civil Litigation With Mandatory Discovery and Voluntary Transmission of Private Information, 34 J. Legal Stud. 137, 137-138 (2005) (since “[a]symmetric information is a leading explanation for bilateral bargaining failure that results in a costly dispute such as a trial[,] . . . the inclusion of mandatory discovery may be important if increasing the number of negotiated settlements is an important goal.”).

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Just seven years later, in 2000, Rule 26 was amended again to narrow the scope of mandatory disclosure. As the advisory committee noted, “The scope of the disclosure obligation is narrowed to cover only information that the disclosing party may use to support its position. In addition, the rule exempts specified categories of proceedings from initial disclosure . . . .” Fed. R. Civ. P. 26 advisory committee’s note (2000). The amended rule exempts nine types of cases from the mandatory disclosure regime, where disclosures seemed unnecessary (from “an action for review on an administrative record” to “an action to enforce an arbitration award”). See Fed. R. Civ. P. 26(1)(1)(B). Given the emphasis on transsubstantivity in the Federal Rules, why might Rule 26’s drafters have wanted to remove certain types of cases from the rule’s ambit?