1 The author served as project director. His research associate was Janna Dee Bounds (now Mrs. Janna Tetzlaff), who at the time was completing her last year of law school.Google Scholar

2 I have described the data these interviews produced about the nature and severity of the system's problems in two earlier articles in this series: Brazil, Wayne D., Views from the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 A.B.F. Res. J. 217 (cited hereinafter as Brazil, Views); and id., Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 A.B.F. Res. J. 787 (cited hereinafter as Brazil, Civil Discovery). I will use this article and a subsequent piece to describe some of the suggestions for improving the discovery system that were made by the lawyers we interviewed.Google Scholar

3 The interviews I conducted in 1981 were unstructured (unlike the interviews in 1979). I presented them as essentially brainstorming sessions, designed to gather ideas and insights and to give judges, magistrates, and litigators opportunities to offer thoughts about several different kinds of reform proposals that lawyers had suggested during the interviews in 1979. In 1979 we conducted all of our interviews in person; in 1981 I used the telephone to conduct 42 of the 55 interviews so I could expeditiously reach judicial officers and lawyers from several parts of the country. I selected respondents who I knew had knowledge about and experience with particular procedures or reform devices in which I was interested, for example, the use of special masters to supervise discovery. I made absolutely no effort to structure a sample group or to assure that the people I interviewed were in any sense (e.g., situationally or philosophically) representative of any larger group. In short, the interviewing process in 1981 was an unstructured exercise in exploration—with no scientific pretensions. The group interviewed included 15 federal district court judges (from San Francisco, San Diego, Seattle, Portland, New York, Philadelphia, and Washington, D.C.), 4 full-time United States magistrates, 6 state court trial judges (all from California), 2 state court commissioners, 3 lawyers who had substantial experience as special masters, 3 clerk-administrators, and 22 litigators.Google Scholar

4 I describe some of the criteria developed for this purpose by different authorities infra, at pp. 902–3.Google Scholar

5 For example, delay and evasion are significant obstacles to completing discovery in both smaller cases (i.e., those in which $25,000 or less is in dispute) and larger cases (i.e., those in which $1,000,000 or more is in dispute). See Brazil, Civil Discovery, supra note 2, at 832–39.Google Scholar

6 See, e.g., Brazil, Views, supra note 2, at 223–35; id., Civil Discovery, supra note 2, at 869–73.Google Scholar

7 See, e.g., American College of Trial Lawyers, Recommendations on Major Issues Affecting Complex Litigation (February 27, 1981), in 90 F.R.D. 205, 209–10 (1981) (cited hereinafter as ACTL, Recommendations).Google Scholar

8 See Brazil, Civil Discovey, supra note 2, at 825–33.Google Scholar

9 See, e.g., Test Project in Delay Reduction Favorable, 1 Kan. Judicial Branch Employee Newsletter 2 (October 1980), and Larry L. Sipes et al, Managing to Reduce Delay 53 (Williamsburg, Va.: National Center for State Courts, 1980).Google Scholar

10 No attempt is made here to catalog all of the recent thinking, innovation, and experimentation that focuses on expediting dispute resolution for smaller and mid-size matters. The references that follow are to some of the more visible contributions and more promising experiments. The literature includes: Thomas W. Church, Jr., et al., Pretrial Delay: A Review and Bibliography (Williamsburg, Va.: National Center for State Courts, 1978); Hufstedler, Seth & Nejelski, Paul, ABA Action Commission Challenges Litigation Cost and Delay, 66 A.B.A.J. 965 (1980); Earl Johnson, Jr., et al., Access to Justice in the United States: The Economic Barriers and Some Promising Solutions, in 1 Mauro Cappelletti & Bryant Garth, eds., Access to Justice: A World Survey 913 (Alphenaandenrijn, Netherlands: Sitjhoff & Noordhoff, 1978); Justice Delayed: The Pace of Litigation in Urban Trial Courts (Williamsburg, Va.: National Center for State Courts, 1978); Lacy, F. R., Discovery Costs in State Court Litigation, 57 Or. L. Rev. 289 (1978); Ronald E. McKinstry, Civil Discovery Reform, 14 Forum 790, 801–3 (1979); Nejelski, Paul, Court Annexed Arbitration, 14 Forum 215 (1978);id., With Justice Affordable for All, 19 Judges' J. 4 (Summer 1980);id. & Russell R. Wheeler, Wingspread Conference on Contemporary and Future Issues in the Field of Court Management (a reflective report on conference sponsored by Institute for Court Management in cooperation with The Johnson Foundation, with additional support from American Bar Endowment) (Racine, Wis.: Johnson Foundation, 1980); Note, Compulsory Judicial Arbitration in California: Reducing the Delay and Expense of Resolving Uncomplicated Civil Disputes, 29 Hastings L. J. 475 (1978); Sipes et al., supra note 9; Weller, Steven, Ruhnka, John C., & Martin, John A., The Rochester Answer to Court Backlogs, 20 Judges' J. 36 (Fall 1981);Yakutis, Alexander B., Judicial Arbitration, California Style, 18 Judges' J. 33 (Winter 1979);id., Reform of Civil Procedure: A Quick Look at a Partial Picture, 56 Cal. St. B.J. 116 (1981). Notable experiments with streamlined procedures, reduced discovery, and/or mandatory disclosure requirements in civil actions are currently under way or being planned in state courts in Maricopa County, Arizona; Colorado (see C.R.C.P. Proposed New Rules and Amendments, 10 Col. Law. 249 (1981)); Campbell County, Kentucky; Maine; and California (see John T. McDermott, The California Economical Litigation Project (Los Angeles, Cal.: Loyola Law School, 1981). In June 1981, the ABA's Action Commission to Reduce Court Costs and Delay decided to try to find courts that would adopt, for experimental analysis, the streamlined procedures for resolving mid-size disputes that are described in Maurice Rosenberg, Rient, Peter F., & Rowe, Thomas D. Jr., Expenses: The Roadblock to Justice, 20 Judges' J. 16 (Summer 1981). The United States District Courts for the Western District of Washington and for the Southern District of New York have conducted interesting experiments in which private attorneys have served as volunteer (uncompensated) mediators to try to facilitate settlement and information exchange in mid-size cases. I will describe the nature and results of these programs in a subsequent article. An experiment to encourage settlements in federal court in Connecticut features the use of an “advocate master” for each party. For a very brief description of these experiments, see Report of the Ad Hoc Committee to Study the High Cost of Litigation to the Seventh Circuit Judicial Committee and the Bar Association of the Seventh Federal Circuit (May 7, 1979), 86 F.R.D. 267, 293–96 (1980). This report also briefly describes arbitration alternatives. Federal district courts in Cleveland and Boston have been experimenting with versions of an early “summary jury trial” procedure that appears to hold considerable promise of expediting case evaluation and settlement in modest-size cases. The Federal Judicial Center has sponsored an evaluation of this approach; preliminary assessments are positive. See the brief description in Jury Trials That Can Save Time and Money, Bus. Week, July 20, 1981, at 166.Google Scholar

11 Advisory Committee on Civil Rules of the Standing Committee on Rules of Practice and Procedure of the Judical Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure (June 1981) (cited hereinafter as Advisory Committee, Proposed Amendments). The Advisory Committee has published this preliminary draft in pamphlet form; it also is bound with 101 S. Ct. (July 15, 1981) and 514 & 515 F. Supp. (July 27, 1981).Google Scholar

12 Joseph L. Ebersole & Barlow Burke, Discovery Problems in Civil Cases 20–22, 66–67 ([Washington, D.C.]: Federal Judicial Center, 1980) (cited hereinafter as Ebersole & Burke, Discovery Problems).Google Scholar

13 See, e.g., Cohn, Sherman L., Federal Discovery: A Survey of Local Rules and Practices in View of Proposed Changes to the Federal Rules, 63 Minn. L. Rev. 253, 255–56 & n. 25 (1979) (cited hereinafter as Cohn, Survey); Cutner, Helen H. Stern, Discovery—Civil Litigation's Fading Light: A Lawyer Looks at the Federal Discovery Rules After Forty Years of Use, 52 Temp. L.Q. 933, 937–52 (1979) (cited hereinafter as Cutner, Discovery); Kaminsky, Martin I., Proposed Federal Discovery Rules for Complex Civil Litigation, 48 Fordham L. Rev. 907, 909–11 (1980) (cited hereinafter as Kaminsky, Proposed Federal Discovery Rules); McKinstry, supra note 10, at 793; Nordenberg, Mark A., The Supreme Court and Discovery Reform: The Continuing Need for an Umpire, 31 Syracuse L. Rev. 543, 560–62 (1980) (cited hereinafter as Nordenberg, Discovery Reform); Rosenberg, Maurice & King, William, Curbing Discovery Abuse in Civil Litigation: Enough Is Enough, 1981 B.Y.U.L. Rev. 442 (cited hereinafter as Rosenberg & King, Curbing Discovery Abuse).Google Scholar

14 Brazil, Civil Discovery, supra note 2, at 847–50.Google Scholar

15 One of the lawyers we interviewed pointed out that conscientious counsel in big cases have at least one significant incentive to conduct early investigations and to promptly develop their understanding of their clients' files and positions. That incentive is fear that ignorance increases the likelihood of unknowingly disclosing, in responses to discovery requests, trade secrets or information that could expose the client to criminal or civil liability in other actions.Google Scholar

16 Brazil, Civil Discovery, supra note 2, at 831. The ABA's Antitrust Section surveyed (through a questionnaire) the views of 100 practitioners about pretrial problems in civil litigation. Of those responding, 62 percent pointed to “excessively broad discovery” as an aspect of the system that needed improvement. Only one other problem was mentioned more often: 100 percent of the lawyers cited “lack of judicial supervision.” See ABA Antitrust Section Complex Litigation Questionnaire, 48 Antitrust L.J. 663 (1980). But see C. Ronald Ellington, A Study of Sanctions for Discovery Abuse (Federal Justice Research Program, Office for Improvements in the Administration of Justice, FJRP- 79/003), at 92–102, 121 (Washington, D.C.: U.S. Dept. of Justice, May 1979) (cited hereinafter as Ellington, Study).Google Scholar

17 Hickman v. Taylor, 329 U.S. 495, 507 (1947). But see Nordenberg, Discovery Reform, supra note 13, at 586–87; and generally Rosenberg & King, Curbing Discovery Abuse, supra note 13.Google Scholar

18 Brazil, Civil Discovery, supra note 2, at 811–12.Google Scholar

19 Id. at 812–15.Google Scholar

20 I will focus in this article on the federal rules because so many big cases are litigated in federal court and because of the great influence the Federal Rules of Civil Procedure have had on the states' procedural systems.Google Scholar

21 Cohn, Survey, supra note 13, at 253–54; Nordenberg, Discovery Reform, supra note 13, at 555–60; Rosenberg & King, Curbing Discovery Abuse, supra note 13, at 3. See also Brazil, Wayne D., The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1295, 1298–1303 (1978).Google Scholar

22 See, e.g., Fisher v. Harris, Upham & Co., 61 F.R.D. 447, 449 (S.D.N.Y. 1973), where, in explaining the need to appoint a special master to supervise aspects of discovery, the court declared: “The spirit of cooperation mandated by the federal rules was sorely lacking.”.Google Scholar

23 Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 911–12.Google Scholar

24 Kaufman, Irving R., Judicial Control over Discovery, 28 F.R.D. 111, 116 (1962).Google Scholar

25 Cohn, Survey, supra note 13, at 254.Google Scholar

26 Id.Google Scholar

27 In addition to the sources cited in note 13 supra, see National Commission for the Review of Antitrust Laws and Procedures, Report to the President and the Attorney General, 80 F.R.D. 509, 522–23, 544–46 (1979) (hereinafter cited as Antitrust Commission, Report); ACTL, Recommendations, supra note 7, at 215, 223; Flegal, Frank & Umin, Steven, Curbing Discovery Abuse in Civil Litigation: We're Not There Yet, 1981 B.Y.U.L. Rev. 459 (cited hereinafter as Flegal & Umin, We're Not There Yet); Levine, Julius B., “Abuse” of Discovery: Or Hard Work Makes Good Law, 67 A.B.A.J. 565, 567 (1981). Levine is one of the few recent commentators to suggest that complaints about discovery abuse are greatly exaggerated and that there is little need for reform. Nonetheless, he concedes that complex cases are the most likely to provoke discovery abuse and that there is a need for continuing judicial supervision in the case development stage of such actions. Levine appears to be unaware of the author's empirical work in this area and of the serious methodological limitations of the empirical work sponsored by the Columbia Project for Effective Justice in the early 1960s. See, Brazil, supra note 21, at 1305–11.Google Scholar

28 Hickman v. Taylor, 329 U.S. 495, 507 (1947). See also Kaufman, supra note 24, at 125.Google Scholar

29 See, e.g., ABA Code of Professional Responsibility, DR 7–101, EC 7–1, EC 7–3, in American Bar Association, Committee on Ethics and Professional Responsibility, Model Code of Professional Responsibility and Code of Judicial Conduct, at 36 & 32 (Chicago: American Bar Association, 1980). The ABA's Commission on Evaluation of Professional Standards (also known as the Kutak Commission because chaired by Robert J. Kutak) has published Proposed Final Draft of the Model Rules of Professional Conduct ([Chicago]: American Bar Association, May 30, 1981) (cited hereinafter as Kutak Commission, Model Rules). I describe the proposed changes that most directly affect attorneys' responsibilities in civil discovery infra, at pp. 888–90, 928–30.Google Scholar

30 The Manual is published in several places. See, e.g., 1 (Pt. 2) Moore's Federal Practice (2d ed. New York: Matthew Bender & Co., 1980 & Cum. Supp. 1980–81). For a brief discussion of the Manual's history, see Comment, Observations on the Manual for Complex and Multidistrict Litigation, 68 Mich. L. Rev. 303, 304–305 (1969). The Federal Judicial Center periodically publishes revisions of the Manual. The citations to the version of the Manual in this article are to the Tentative Draft, Fifth Revision, Manual for Complex Litigation (February 4, 1980), published in looseleaf form (cited hereinafter as Manual for Complex Litigation); the material quoted in the text is from § 1.10, at 58–59. Some of the lawyers and judges we interviewed suggested that the nature of the Manual itself has inhibited assertions of control by the judiciary over the pretrial stage of complex litigation. I explore the thinking behind this observation infra, at pp. 907–9 & note 120.Google Scholar

31 Brazil, Civil Discovery, supra note 2, at 862–64.Google Scholar

32 Id. at 865–66.Google Scholar

33 Id. at 865.Google Scholar

34 See, e.g., Peckham, Robert F., The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition, 69 Cal. L. Rev. 770 (1981) (cited hereinafter as Peckham, Judge as Manager); ACTL, Recommendations, supra note 7, at 210–12; Antitrust Commission, Report, supra note 27, at 515–18; Cohn, Survey, supra note 13, at 268–71, 295–97; Ebersole & Burke, Discovery Problems, supra note 12, at 79–81; McKinstry, supra note 10, at 797–98; Nordenberg, Discovery Reform, supra note 13, at 560–71, 592–99. But see Steven Flanders, et al, Case Management and Court Management in United States District Courts 17 (Washington, D.C.: Federal Judicial Center, 1977) (cited hereinafter as FJC, Case Management), where the authors declare: “To handle its case load efficiently, a court must minimize the time judges spend on the initial stages of their cases and require lawyers themselves to resolve the relatively petty disputes (especially discovery questions) in most instances.” This position is criticized by Nordenberg, Discovery Reform, supra note 13, at 566–67.Google Scholar

35 See, e.g., McAllister, Breck P., The Big Case: Procedural Problems in Antitrust Litigation, 64 Harv. L. Rev. 27 (1950);[The Prettyman Report] (Adopted by the Judicial Conference of the U.S., Sept. 26, 1951), 13 F.R.D. 62 (1953);Ridge, Albert A., The Organization of the Big Case—The First Pre-trial Conference, in Proceedings of the Seminar on Protracted Cases for United States Circuit and District Court Judges Held at New York University Law Center, New York City, August 26–30, 1957, 21 F.R.D. 395, 406 (1958);Proceedings of the Seminar on Protracted Cases for United States Judges Held at the School of Law, Stanford University, Stanford, California, August 25–30, 1958, 23 F.R.D. 319 (1958); Handbook of Recommended Procedures for the Trial of Protracted Cases: Report of the Judicial Conference Study Group on Procedure in Protracted Litigation, 25 F.R.D. 351, 375 (1960).Google Scholar

36 See, e.g., Cohn, Survey, supra note 13, at 297; Cutner, Discovery, supra note 13, at 986; American College of Trial Lawyers, Comments Regarding Revision of the Manual for Complex Litigation (1979), at 4–5 (cited hereinafter as ACTL, Comments); ACTL, Recommendations, supra note 7, at 214–15; Withrow, James R. & Larm, Richard P., The “Big” Antitrust Case: 25 Years of Sisyphean Labor, 62 Cornell L. Rev. 1, 5 (1976) (cited hereinafter as Withrow & Larm, The “Big” Antitrust Case).Google Scholar

37 The authorities and data that support this generalization are cited in notes 154–56 infra and are discussed in the accompanying text.Google Scholar

38 See, e.g., Paul R. Connolly, Edith A. Holleman, & Michael J. Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery 8–14 (Washington, D.C.: Federal Judicial Center, 1978) (cited hereinafter as FJC, Judicial Controls); Cohn, Survey, supra note 13, at 253–54.Google Scholar

39 See, e.g., Advisory Committee, Proposed Amendments, note to Rule 16, supra note 11, at 14–15; Cutner, Discovery, supra note 13, at 946.Google Scholar

40 Advisory Committee note to Rule 26(f), in Advisory Committee, Proposed Amendments, supra note 11, at 6–7.Google Scholar

41 Levy, Stanley J., A Defense of Meaningful Pre-trial Discovery, 14 Forum 781, 786 (1979); FJC, Judicial Controls, supra note 38, at 15–17.Google Scholar

42 Comment, supra note 30, at 303–5. Apparently for the first time, the Supreme Court cast a shadow of doubt on the authority of the Manual in the recent opinion in Gulf Oil Co. v. Bernard, — U.S—, 101 S. Ct. 2193 (1981). In Gulf the court reversed a trial court's verbatim use of a form of order that the Manual for Complex Litigation recommends to help control communication between counsel and members of a group who could join a class action. Relying on Rule 23, the Court held that trial judges must engage in particularized balancing evaluations before entering such orders, even when the form of order is recommended by the Manual.Google Scholar

43 Advisory Committee, Proposed Amendments, note to Rule 16, supra note 11, at 19; Cohn, Survey, supra note 13, at 265–71, 268 n.89; see generally FJC, Case Management, supra note 34.Google Scholar

44 Cohn, Survey, supra note 13, at 271.CrossRefGoogle Scholar

45 There are, of course, many judges whose “intent to manage” is unquestionable and highly visible. Many attorneys we interviewed cited Judge Hubert L. Will, United States District Court for the Northern District of Illinois, as a prime example. See also Milton Pollack, Discovery—Its Abuse and Correction, 80 F.R.D. 219 (1979) and Schwarzer, William W., Managing Civil Litigation: The Trial Judge's Role, 61 Jud. 400 (1978). The data generated by our interviews with lawyers and judges, however, strongly suggest that aggressive judicial management during the discovery stage is the exception rather than the norm. Observations by other students of discovery problems support this conclusion; see, e.g., Ellington, Study, supra note 16, at 32–37; Antitrust Commission, Report, supra note 27, at 522.Google Scholar

46 Brazil, Views, supra note 2, at 245–46, 248–49.Google Scholar

47 See also Ellington, Study, supra note 16, at 115–16.Google Scholar

48 The pervasiveness of this view within the group of predominantly big case lawyers we interviewed may be reflected in the fact that about 80 percent of them favor greater judicial involvement in the discovery stage. See Brazil, Civil Discovery, supra note 2, at 864.Google Scholar

49 For further discussion of ways in which judicial remoteness and reluctance to sanction can spawn discovery abuse, see Brazil, Views, supra note 2, at 248–50.Google Scholar

50 Cutner, Discovery, supra note 13, at 986.Google Scholar

51 Ebersole & Burke, Discovery Problems, supra note 12, at 72–73.Google Scholar

52 This committee reports to the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, which, in turn, reports to the Supreme Court. See 28 U.S.C. § 331 (1976 & Supp. III 1979).Google Scholar

53 Advisory Committee, Proposed Amendments, supra note 11.Google Scholar

54 Id. at 10–14.Google Scholar

55 Id. at 23.Google Scholar

56 Id. at 2–3, 6–7, 13.Google Scholar

57 Id. at 23–24.Google Scholar

58 Id. at 38–54.Google Scholar

59 Kutak Commission, Model Rules, supra note 29, Rule 3.2.Google Scholar

60 Id. Rule 3.3(a)(2).Google Scholar

61 Id. Rule 3.4(a).Google Scholar

62 Id. Rule 3.4(d).Google Scholar

63 See, e.g., ACTL, Comments, supra note 36; id., Recommendations, supra note 7; Antitrust Commission, Report, supra note 27; Cohn, Survey, supra note 13; Cutner, Discovery, supra note 13; Ebersole & Burke, Discovery Problems, supra note 12; FJC, Case Management, supra note 34; id., Judicial Controls, supra note 38; Forde, Kevin M., Use of the Manual for Complex Litigation—The Plaintiff's Viewpoint, 15 Forum 137 (1979); Hufstedler & Nejelski, supra note 10; Justice Delayed, supra note 10; Kaminsky, Proposed Federal Rules, supra note 13; Kendig, Dennis A., Procedures for Management of Non-Routine Cases, 3 Hofstra L. Rev. 701 (1975);Kirkham, Francis R., Problems of Complex Civil Litigation, 83 F.R.D. 497 (1979); Levy, supra note 41; McKinstry, supra note 10; Nordenberg, Discovery Reform, supra note 13; Note, The Pretrial Conference: A Critical Examination of Local Rules Adopted by Federal District Courts, 64 Va. L. Rev. 467 (1978); Peckham, Judge as Manager, supra note 34; Perlman, Paul, The Federal Discovery Rules: A Look at New Proposals, 15 New England L. Rev. 57 (1979); Pollack, supra note 45; Puro, Steven, Goldman, Roger L., & Padawer-Singer, Alice M., The Evolving Role of U.S. Magistrates in the District Courts, 64 Jud. 436 (1981);Renfrew, Charles B., Discovery Sanctions: A Judicial Perspective, 67 Cal. L. Rev. 264, 280–81 (1979) (cited hereinafter as Renfrew, Discovery Sanctions); Rubin, Alvin B., The Managed Calendar: Some Pragmatic Suggestions About Achieving the Just, Speedy, and Inexpensive Determination of Civil Cases in Federal Courts, 4 Just. Sys. J. 135 (1978);Schroeder, Mary M. & Frank, John P., The Proposed Changes in the Discovery Rules, 1978 Ariz. St. L.J. 475; William W. Schwarzer, Managing Antitrust and Other Complex Litigation: A Handbook for Lawyers and Judges (scheduled for publication in the fall of 1981 by Michie Co./Bobbs-Merrill Law Publishing); id., supra note 45; Silberman, Linda J., Masters and Magistrates, Part II: The American Analogue, 50 N.Y.U.L. Rev. 1297, 1361 & n. 367 (1975);Sipes, Larry L., Managing to Reduce Delay, 56 Cal. St. B.J. 104 (1981); Sipes et al., supra note 9; Smith, H. Richard, The Concern over Discovery, 28 Drake L. Rev. 51 (1978); Withrow & Larm, The “Big” Antitrust Case, supra note 36, at 36; Wyllie, Thomas J., Use of the Manual for Complex Litigation—The Defendant's Viewpoint, 15 Forum 163 (1979).Google Scholar

64 In Herbert v. Lando the court advised that “judges should not hesitate to exercise appropriate control over the discovery process.” 441 U.S. 153, 177 (1979).Google Scholar

65 Cohn, Survey, supra note 13, at 271.CrossRefGoogle Scholar

66 Id. at 267.Google Scholar

67 See also Milton Kelner, Ready Justice, 16 Trial 56 (Jan. 1980); FJC, Case Management, supra note 34, at 20.Google Scholar

68 FJC, Case Management, supra note 34, at 18–19, 109.Google Scholar

69 Former Rule 7(b), now Rule 21 (b), of Local Rules, United States District Court, Eastern District of Pennsylvania (emphasis added).Google Scholar

70 See FJC, Case Management, supra note 34, at 19 n.2.Google Scholar

71 See A Model Rule for Pretrial Management of Civil Actions, appendix A infra.Google Scholar

72 See, e.g., Sipes et al, supra note 9, at 37–38, 47–53; Sipes, supra note 63; FJC, Case Management, supra note 34, at 19; FJC, Judicial Controls, supra note 38, at 52–66. See also Peckham, Judge as Manager, supra note 34, at 772, where he writes: “The most elementary function of the status conference is to establish a timetable for the litigation. While very easily administered, this simple scheduling function yields perhaps the greatest benefits of any of the various pretrial procedures.”.Google Scholar

73 Advisory Committee, Proposed Amendments, supra note 11, note to Rule 16, at 14–15; Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 909–11; ACTL, Recommendations, supra note 7, at 209–10; Peckham, Judge as Manager, supra note 34, at 781–82.Google Scholar

74 The Advisory Committee's version of Rule 16 would permit district courts to adopt local rules exempting “categories of actions … as inappropriate for scheduling conferences or orders.” See subdivision (b) of the proposed rule, reproduced in appendix B infra. At least until there is reason to believe courts will abuse this power to create exemptions, I believe the flexibility it permits is desirable and should be incorporated into the model management schema.Google Scholar

75 Unrepresented parties would perform these tasks directly.Google Scholar

76 Chief Judge Peckham reports favorable experience with this time frame and recommends amending Rule 16 so that “it explicitly requires an early status conference.” He also writes: “Since, the status conference is most helpful when held promptly, Rule 16 should require it to be held within a specified time after the commencement of the action. I believe that sixty to ninety days provides ample time for the parties to prepare themselves to schedule their pretrial activity, and this belief seems to be justified by experience in the Northern District of California.” Peckham, Judge as Manager, supra note 34, at 785.Google Scholar

77 See, e.g., Manual for Complex Litigation, supra note 30, §1.00, at 54–55. As one of the judges we interviewed pointed out, it makes no sense to use the date on which the answer is filed or the issue is joined to trigger management schedules or case development obligations. Answers may not be filed until months after the action is commenced, and in cases involving multiple defendants (where management is more likely to be needed), delay in the filing of only one answer could needlessly postpone judicial intervention and thus retard progress toward disposition.Google Scholar

78 As Cohn has pointed out, some federal courts have adopted “meet and confer” rules that require counsel to submit affidavits affirming that good faith “personal consultation” failed to resolve outstanding discovery disputes and to specify the date, time, and place of the conference, as well as the names of all participants. While such requirements presumably improve the likelihood that the attorneys themselves will confer, Cohn remains skeptical that meet and confer requirements can accomplish much. See Cohn, Survey, supra note 13, at 262–64.Google Scholar

79 Our interview data suggest that even in large, complex matters, clients do not routinely play a major role in decisions about how to approach preparation for trial and discovery. While it appears that major institutional clients are more likely than individuals to pressure their attorneys to resist disclosure of sensitive information, even large corporate clients appear to exert such pressures in fewer than 30 percent of the cases. Brazil, Civil Discovery, supra note 2, at 859–61. A few attorneys reported having been urged by clients to use discovery tools for retaliatory harassment or to impose economic pressure on opponents, but, on balance, the most reasonable inference from our data is that it is unusual for clients to encourage counsel to abuse discovery devices. It is important to emphasize, however, that our data about client behavior are far too limited to support anything approaching firm conclusions.Google Scholar

80 See, e.g., Green, Eric D., Marks, Jonathon B., & Olson, Ronald L., Settling Large Case Litigation: An Alternate Approach, 11 Loy. L.A.L. Rev. 493 (1978).Google Scholar

81 See, e.g., Antitrust Commission, Report, supra note 27, at 561, 568. According to attorneys and judicial officers we interviewed, exchanges of narrative statements worked effectively to produce stipulations about factual matters in the early pretrial stages of the federal government's antitrust action against AT&T. For a description of the procedures initially established by Judge Harold H. Greene in this lawsuit and for an explanation of their rationale, see United States v. American Telephone & Telegraph Co., 461 F. Supp. 1314, 1344–49 (D.D.C. 1978). Judge Greene's order required the parties to describe in detail their legal contentions and their versions of the facts, and to “list the witnesses and the documentary and other evidence which will be used to support” each factual claim. In the initial exchanges I propose, however, parties would not be required to list witnesses or to describe evidence, and would be required to present their expositions of the law briefly. In the opinion cited here Judge Greene assigned responsibility for coordinating the exchanges of narratives to the United States magistrate. The judge subsequently transferred that responsibility to the special masters. For an embryonic version of the kind of requirement I have described in the text, see the Rules for Complex Litigation promulgated by the United States District Court for the Northern District of Ohio, Rule 2.04(a); these rules can be found in the looseleaf service published by Callaghan & Co. under the title Federal Local Court Rules (updated into 1981).Google Scholar

82 The relevant aspects of Judge Greene's order in the government's action against AT&T are very instructive but probably cannot serve as a model for how courts should treat the initial statements I would require parties to exchange before their first private meeting. Under Greene's plan, it is not entirely clear what function the first statements prepared by the parties would serve. They would not be used to restrict discovery during the period before the exchange of the second set of statements. See United States v. AT&T, 461 F. Supp., at 1346 n.108. Apparently these initial statements would serve primarily as rough but flexible outlines of matters in dispute. In their second statements, parties were to be permitted considerable freedom to enlarge upon contentions made in the first statements or to add new contentions; that freedom would be essentially unrestricted if the desire to depart from the first statement could be supported by subsequently discovered information. Id. at 1346. As the discussion in the text makes clear, under the rules I propose the initial statements would be used to focus and limit at least the first rounds of discovery. Portions of Greene's description of the ways he intended to use the series of statements by the parties to limit discovery and of the standards under which he would evaluate requests to depart from positions taken in preceding statements are reproduced in note 134 infra.Google Scholar

83 Most of the elements of this certification duty are taken from the Advisory Committee's proposals for extending the certification requirement of Rule 7 and for adding a certification obligation to Rules 11 and 26. See Advisory Committee, Proposed Amendments, supra note 11, at 2, 6–7, 23–24. 1 discuss the Committee's certification proposal for Rule 26 infra, at pp. 937–40.Google Scholar

84 See sec. IV infra for an analysis of shortcomings in current formulations of sanctions rules and for suggested changes in these provisions.Google Scholar

85 See, e.g., Advisory Committee, Proposed Amendments, supra note 11, note to Rule 16, at 15, 17.Google Scholar

86 Ebersole & Burke, Discovery Problems, supra note 12, at 77, 79.Google Scholar

87 The study attempted to explore in detail the nature of discovery problems in 23 cases. Id. at 8.Google Scholar

88 Id. at 77.Google Scholar

89 Id.Google Scholar

90 Under the 1979 amendments to 28 U.S.C. §636 magistrates can assume responsibility for all aspects of civil litigation, including trial, if the parties freely consent to the reference. The statute does not require party consent when the court assigns responsibility for nondispositive discovery matters to a magistrate. The proposals the Advisory Committee has circulated for comment include three new federal rules (72, 73, and 74) that would provide explicit rule authorization for magistrates to exercise the powers that Congress has made possible through 28 U.S.C. §636(c) (Supp. Ill 1979).Google Scholar

91 The only provision in the Federal Rules of Civil Procedure for the appointment of special masters is Rule 53, which imposes significant restraints on use of the referencing power and provides little or no guidance about assigning pretrial responsibilities to special masters. In fact, Rule 53 seems to have been drafted only in contemplation of using masters at the trial stage. Nonetheless, many federal courts have invoked Rule 53 as a source of authority to assign pretrial functions to special masters. See, e.g., Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114 (C.D. Cal. 1977); Fisher v. Harris, Upham & Co., 61 F.R.D. 447 (S.D.N.Y. 1973). There also is good reason to believe that courts need not rely on Rule 53 to appoint a special master because they have “inherent authority” to make such appointments. See, e.g., Ex parte Peterson, 253 U.S. 300 (1920) and First Iowa Hydro Elec. Coop. v. Iowa-Ill. Gas & Elec. Co., 245 F.2d 613, 627 (8th Cir. 1957). But see Arthur Murray, Inc. v. Oliver, 364 F.2d 28 (8th Cir. 1966). Moreover, it is at least arguable that consent freely given by the parties can be an independent and sufficient source of authority for references to special masters. Cf. Cruz v. Hauck, 515 F.2d 322, 330 (5th Cir. 1975); Kimberly v. Arms, 129 U.S. 512 (1889). But cf. Wilver v. Fisher, 387 F.2d 66 (10th Cir. 1967). In a subsequent article I will explore in detail the scope of federal courts' authority to refer pretrial matters to special masters and will examine the advantages and disadvantages of using special masters to supervise discovery or to resolve specific discovery disputes. I also will suggest substantial amendments to Rule 53 that will be designed to offer federal judges clearer guidance about using special masters in the pretrial period.Google Scholar

92 The model rule or the notes that elaborate on it might list some of the tasks that masters have performed successfully in the past. Because ruling on assertions of privilege to protect documents is the kind of task that can be very time consuming and is especially appropriate for assignment to a master (see, e.g., United States v. AT&T, 461 F. Supp. at 1348), the rule might require counsel to estimate the volume of documents they expect to be subject to assertions of privilege.Google Scholar

93 I will discuss procedures for selecting special masters in a subsequent article in this series.Google Scholar

94 The ABA's Action Commission to Reduce Court Costs and Delay has been monitoring a substantial experiment using conference calls for pretrial matters in state courts in Maine. See, e.g., Hufstedler & Nejelski, supra note 10, at 965, wherein the authors also briefly describe successful uses of the telephone for related purposes by judges in other jurisdictions.Google Scholar

95 See, e.g., ACTL, Recommendations, supra, note 7, at 220; Antitrust Commission, Report, supra note 27, at 546; Cutner, Discovery, supra note 13, at 950–54; Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 984, 996.Google Scholar

96 See, e.g., Peckham, Judge as Manager, supra note 34, at 782, where Chief Judge Peckham describes in the following words some of the “intangible benefits” of an early status conference between judge and attorneys:. Although the primary functions of the status conference are to resolve scheduling matters, shape further pretrial procedures, and formulate a discovery plan that will be cost-efficient, certain intangible benefits also flow from this early meeting of attorneys and judge. The meeting itself warns the attorneys that they have a vigilant judge, and it may therefore prod attorneys who might otherwise be less than diligent into transferring the case to their “active” files. The conference can also give the judge a “feel” for the case and the attorneys. For example, he may pick up early signals that an attorney tends to be careless or to procrastinate, perhaps warranting a fairly rigid timetable and a warning that it will be strictly enforced. Or, he may see that the parties are particularly combative and thus likely to engage in many pretrial disputes. He may glean that one or both attorneys are confused about important legal or other issues in the action, so that the later, formal pretrial conference and order should be comprehensive. In short, the status conference is usually the first personal contact between the judge and the attorneys, and the judge can use his considerable influence to set the tone of a relationship in which he and the attorneys are likely to be engaged for the duration of the litigation.Google Scholar

97 L Comp R 2.01 (1), N.D. Ohio, reproduced in Federal Local Court Rules (Callaghan & Co.; updated into 1981).Google Scholar

98 Manual for Complex Litigation, supra note 30, §0.22. The Manual does not include in its list of categories any reference to the size of the prayer. The criteria for identifying potentially complex cases offered by the American College of Trial Lawyers are very similar to those suggested in the Manual. See ACTL, Recommendations, supra note 7, at 211.Google Scholar

99 Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 916–19, 977.Google Scholar

100 Kendig, supra note 63, at 703–8.Google Scholar

101 For suggested means of handling the mechanics of identifying complex matters, see id. at 708–12; Manual for Complex Litigation, supra note 30, §0.23, at 41–42; Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 916–17.Google Scholar

102 There are at least some circumstances in which courts can refer nondispositive discovery matters to a special master even over the objection of a party. See, e.g., Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114 (C.D. Cal. 1977). For reasons I will develop in a subsequent piece, however, it might not always be wise for courts to exercise that power.Google Scholar

103 FJC, Case Management, supra note 34, at 37–39.Google Scholar

104 Id. at 39. The authors complete the thoughts in the quoted passage by suggesting: “This purpose might be best served if conferences could be held before a judge other than the one to whom the case was assigned, or before a magistrate, to permit free discussion of the merits of the case.”.Google Scholar

105 See, e.g., ACTL, Recommendations, supra note 7, at 212–26; Antitrust Commission, Report, supra note 27, at 558–69; Withrow & Larm, The “Big” Antitrust Case, supra note 36, at 22–26; United States v. AT&T, 461 F. Supp. at 1347; Peckham, Judge as Manager, supra note 34, at 780.Google Scholar

106 Frederick, Judge Lacey, B., Proposed Techniques for Streamlining Trial of Complex Antitrust Cases: Pro and Con, 48 Antitrust L.J. 487, 488 (1980) where Judge Lacey (United States District Court, District of New Jersey) declares: “The most effective device for saving trial time is the ruthless reduction of contested issues at pretrial. Counsel, acting without steady judicial pressure, will often not achieve this.”. Judge Patrick E. Higginbotham (United States District Court, Northern District of Texas) has emphasized how the pressure of firm and early deadlines to complete trial preparation can lead counsel to identify and focus on the central issues in litigation. In the following passage Higginbotham also warns that premature efforts to delimit issues can backfire:. While 1 agree at least in theory with the Commission's recommendation of early issue-definition, I have found that in practice the setting of time schedules forces the lawyers themselves to concentrate upon the discovery that is really necessary to their case and to thereby bring into focus the central issues. I would not rule out the use in certain cases of the Commission's recommendation that the parties exchange throughout the pretrial stage of the litigation nonbinding statements of fact and contentions of law. There is a danger, however, that definition of issues too early in the course of the lawsuit may be self-defeating in the sense that it may generate a plethora of minor disputes as to whether requested discovery falls within the defined issues. Higginbotham, The Commission Recommendations Can Work, 48 Antitrust L.J. 475, 482 (1980) (footnote omitted).Google Scholar

107 See, e.g., Advisory Committee, Proposed Amendments, supra note 11, note to Rule 16, at 19.Google Scholar

108 See, e.g., Cutner, Discovery, supra note 13, at 946, 950–56, 986.Google Scholar

109 See, e.g., ACTL, Recommendations, supra note 7, at 222.Google Scholar

110 Manual for Complex Litigation, supra note 30, §0.50.Google Scholar

111 Id. §1.50.Google Scholar

112 Id. §1.70.Google Scholar

113 Id. §2.30.Google Scholar

114 Id. §§3.70 & 4.00. See also Wyllie, supra note 63, at 170; ACTL, Comments, supra note 36, at 5–8; Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 915; United States v. AT&T 461 F. Supp. at 1347.Google Scholar

115 Manual for Complex Litigation, supra note 30, at §§0.50, 1.50.Google Scholar

116 Id. §1.70.Google Scholar

117 See, e.g., ACTL, Comments, supra note 36, at 21.Google Scholar

118 Id. at 8–14; Antitrust Commission, Report, supra note 27, at 549, 559–60.Google Scholar

119 Manual for Complex Litigation, supra note 30, §1.10; Withrow & Larm, The “Big” Antitrust Case, supra note 36, at 27–28.Google Scholar

120 See also Cutner, Discovery, supra note 13, at 950, where the author declares: “Many judges seem to believe that utilization of the provisions of the Manual is onerous and somehow makes the case complex, and will refuse to consider its use even when requested to do so” (emphasis in original).Google Scholar

121 One predominantly plaintiff's attorney whom we interviewed declared, for example, that a wealthier defendant's capacity to bury a plaintiff in the costs and delays of overbroad discovery has become one of the biggest obstacles to pursuing meritorious claims through litigation.Google Scholar

122 One of the most articulate proponents of an approach whose principal features, at least, track those described in the text is Judge William W. Schwarzer of the United States District Court for the Northern District of California. In the fall of 1981 Michie Co./Bobbs-Merrill Law Publishing (Charlottesville, Va.) will publish Judge Schwarzer's Managing Antitrust and Other Complex Litigation: A Handbook for Lawyers and Judges. See also Schwarzer, supra note 45. Another articulate proponent of a version of the approach described in the text is Ronald E. McKinstry, who is head of the litigation section in the Seattle, Washington, law firm of Bogle and Gates. McKinstry has served several times as a special master during the pretrial stages of litigation in federal courts. He has described, in outline form, his view of the core-concentric circles theory of discovery orchestration in the following terms:. An alternate to the “dragnet” approach is what I term the expanding concentric circle approach. By this is meant the production of documents will begin with the central core of documents that all agree have a more direct relation to the lawsuit issues. In setting the temporal, geographic, and other relevance boundaries, the guideline will be those initial discovery boundaries which are believed will produce probable rather than possible relevant evidence. It is a matter of degree which requires the production, review, and assimilation of center core documents before proceeding into the more peripheral and expanding concentric circles. From the initial production, the scope expands based upon showing, from documents produced, the reasonable need to go into the peripheral fringes. It is the difference between building a document base from the core out rather than starting with the entire document universe and discarding the majority down to relevant exhibits. McKinstry, Use of Special Master in Major Complex Cases, in Federal Discovery in Complex Civil Cases: Antitrust, Securities and Energy, 213, 221 (New York: Law Journal Seminars Press, Inc., 1980). One experienced big case litigator we interviewed who generally favors the core-concentric circle approach to discovery argued for one exception which, in my judgment, would threaten to defeat the purposes of the theory. This lawyer would permit wide-open early discovery of documents, confining the core restrictions to interrogatories, depositions, and other discovery tools. His rationale for creating this exception is based on his belief that documents are the most reliable vehicles for arriving at the truth. He feels most comfortable about his understanding of a case if he begins by systematically reviewing all arguably relevant documents, then building a picture or story of the underlying events and personalities from that document base. The difficulty with creating an exception to the core approach for documents, of course, is that in major lawsuits document discovery can represent such a huge portion of pretrial preparation that this exception frequently would swallow the rule.Google Scholar

123 Advisory Committee, Proposed Amendments, supra note 11, at 22.Google Scholar

124 Id. at 23.Google Scholar

125 Id. at 26.Google Scholar

126 Id. at 25–26.Google Scholar

127 Ellington, Study, supra note 16, at 6.Google Scholar

128 See generally Silberman, supra note 63; Kaufman, Irving R., Masters in the Federal Courts: Rule 53, 58 Colum. L. Rev. 452 (1958); Note, Masters and Magistrates in the Federal Courts, 88 Harv. L. Rev. 779 (1975).Google Scholar

129 See, e.g., 28 U.S.C. §636, which suggests standards, for reviewing decisions by federal magistrates. See also the new rules (72–76) relating to magistrates in the Advisory Committee's Proposed Amendments, supra note 11.Google Scholar

130 I will propose model rules that include such standards in the next article in this series.Google Scholar

131 For relatively recent statements by the Supreme Court about how to determine how much process is due under the United States Constitution in civil settings, see Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1 (1978) and Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978).Google Scholar

132 The beneficial effects of promptly fixing these dates even in smaller, routine matters are now clearly documented. See, e.g., Sipes et al., supra note 9; Test Project in Delay Reduction Favorable, supra note 9, FJC, Case Management, supra note 34.Google Scholar

133 Some of the judges we interviewed, e.g., reported successfully using a flagging system under which their clerks periodically review the status of every case assigned to the court. The judge or a member of his staff contacts counsel in every case in which there is no record of activity over a specified period, e.g., three months. See also Cohn, Survey, supra note 13, at 269–70.Google Scholar

134 The approach adopted by Judge Greene in the government's antitrust action against AT&T is sufficiently thoughtful and instructive to warrant a detailed description here. What follows are quotations from his opinion in United States v. AT&T, 461 F. Supp. at 1345–47; they reflect the outlines of the control scheme he devised. In essence, that order provides that the parties shall file four successive Statements of Contentions and Proof over the next eighteen months, each to become progressively more specific than the last, and each to be followed by a special pretrial conference. The filing of the final statements shall signal the close of discovery. Thus, by November 1, 1978, plaintiff shall file a Statement of Contentions and Proof, in which it shall describe, with specificity, each of the government's legal and factual contentions, including the activities of the defendants it expects to rely upon to prove its charges of violation of Section 2 of the Sherman Act. Under the heading of each factual contention, the statement shall list the witnesses and the documentary and other evidence which will be used to support the claim that such activity was carried on to effect unlawful combinations in violation of the antitrust laws, or which will otherwise support the allegations of the complaint. The statement shall describe the extent to which such evidence is presently in the possession of the plaintff, or where, in the government's view, it may be found. Defendants shall then have until January 1, 1979, to file their first Statement of Contentions and Proof in which they shall state their factual and legal contentions in response to plaintiff's claims, the factual and legal basis for their affirmative defenses, if any, and the documentary or other proof they expect to rely upon in support of each factual contention. Defendant's statement shall be organized in a manner similar to that of plaintiff and it shall be similarly detailed. Within thirty days thereafter, a special pretrial conference shall be held before the Magistrate in accordance with Rule 16, F.R. Civ. P. and 28 U.S.C. §636, for the principal purposes of narrowing and simplifying the issues, arriving at stipulations of uncontroverted facts, and reducing further unnecessary discovery. Each of the parties shall file three additional Statements of Contentions and Proof, and three additional special pretrial conferences shall be held successively thereafter, as follows. [Schedule for statements omitted] [S]pecial pretrial conferences shall be held on or about June 1, 1979, December 1, 1979, and May 1, 1980. Some of these pretrial conferences, particularly the later ones, may be conducted by the Court rather than the Magistrate. On April 1, 1980, contemporaneously with the submission of the final statements, all discovery shall be closed. If the issues are to be narrowed and this case is to be brought to trial within a reasonable period of time, it is essential that the parties be bound by their Statements of Contentions and Proof. Accordingly, after a party has filed a statement, it will be restricted to discovery within the limitations of the issues identified by that statement and the contemporaneous opposing statement. Likewise, with the exceptions noted below, subsequent statements may not enlarge upon or add to contentions previously made, and they will have as their purpose not the inclusion of matters neglected or overlooked in earlier statements, but the further narrowing and tightening of matters in dispute between the parties…. To be sure, in the early stages of this process the parties may not be able to be fully definitive as to either the evidence or the specific contentions that will be based on that evidence. Accordingly, upon leave of the Magistrate, which will be freely granted with respect to a request based upon new discovery, the second statement may enlarge upon the first, either by broadening existing contentions or by adding new contentions. Cf. Rule 15, F.R. Civ. P. Thereafter, however, the burden to justify a departure from previous statements shall become progressively heavier. After the parties file their second statements, an enlargement will be allowed only upon good cause shown, and after the third statements are filed, any amendment, other than by way of limitation, will be granted only to prevent manifest injustice. [Citations omitted] These procedures will be enforced and administered to achieve a narrowing of the issues, to apprise opponents and the Court of the status of the case, and to effect appropriate limitations on discovery. [Paragraph numbers and footnotes omitted].Google Scholar

135 See, e.g., Note, Federal Rules of Civil Procedure: Defining a Feasible Culpability Threshold for the Imposition of Severe Discovery Sanctions, 65 Minn. L. Rev. 137, 154 (1980) wherein the author concludes, inter alia:. In light of previous experience, rules 26(f) and 37(a) should be amended by inserting appropriate language requiring written court orders for establishing discovery plans and for compelling discovery. Written orders promote certainty in the duty of litigants and their attorneys to aid courts in securing “the just, speedy, and inexpensive determination of every action.” [Footnotes omitted]. See also Ellington, Study, supra note 16, at 53, 68–69.Google Scholar

136 The proposed version of subdivision (a) explicitly empowers the court to compel the appearance only of “the attorneys for the parties and any unrepresented parties” (italics in the original, to identify additions to the current rule).Google Scholar

137 See the Proposed Amended Rule 16 in Antitrust Commission, Report, supra note 27, at 568, which begins with the following: “In any action, the court may, in its discretion, or upon the request of any party, direct the attorneys for the parties to appear before it for a conference or conferences to consider [the matters listed]” (italics in the original to identify additions to current rule). See also Peckham, Judge as Manager, supra note 34, at 779, where Peckham reports: “The provision [in local rule 235–3 of the United States District Court for the Northern District of California] allowing attorneys to move for status conferences is a valuable aspect of our local rules. Thus, even if a judge does not take the initiative to set the conference, a party who perceives a need to organize the pretrial schedule and commit his opponent to court-ordered deadlines can obtain assistance from the court.”.Google Scholar

138 See text supra, at pp. 894–95, 903–4.Google Scholar

139 FJC, Case Management, supra note 34, at 33–37; FJC, Judicial Controls, supra note 38, at 52–59; Nordenberg, Discovery Reform, supra note 13, at 597–99; Antitrust Commission, Report, supra note 27, at 534–40.Google Scholar

140 The committee's note about clause (6) should be revised to include reference to the potential utility of special masters during the discovery phase of major lawsuits. See Advisory Committee, Proposed Amendments, supra note 11, at 18.Google Scholar

141 Id. at 19.Google Scholar

142 Cf. Withrow & Larm, The “Big” Antitrust Case, supra note 36, at 5–9.Google Scholar

143 Advisory Committee, Proposed Amendments, supra note 11, at 12 (Rule 16(c)(10).Google Scholar

144 Brazil, Civil Discovery, supra note 2, at 863–65.Google Scholar

145 Cf. Nordenberg, Discovery Reform, supra note 13, 567, 595–96; Cutner, Discovery, supra note 13, at 950–52.Google Scholar

146 Brazil, Views, supra note 2, at 245–47. See also Cutner, Discovery, supra note 13, at 946–50, 955–56.Google Scholar

147 One United States magistrate estimated that attorneys in his district request a Rule 26(f) discovery conference in 10 percent or fewer of the cases in which there is some discovery activity. The magistrate pointed out that one major reason for this low percentage might be the fact that such conferences have been explicitly authorized only since August 1, 1980 and, therefore, might not have “caught on.” We have, however, relatively little data about frequency of use of Rule 26(f); it simply is too early to make any serious effort to assess the effects or utility of the current provisions for discovery conferences.Google Scholar

148 Advisory Committee, Proposed Amendments, supra note 11, at 12.Google Scholar

149 Id. at 13.Google Scholar

150 The sanctions paragraph then could begin simply by declaring: “If a party or party's attorney fails to comply with any of the duties set forth in [the ‘duties’ paragraph], the judge shall [take whatever action the ‘sanctions' paragraph prescribes].” See the next section for a discussion of problems with the structure of the sanctions provisions and for suggested changes.Google Scholar

151 See, e.g., proposed Rules 7(b)(3), (11), 16(f), and 26(g), all in Advisory Committee, Proposed Amendments, supra note 11.Google Scholar

152 As I hope to make clear below, the recommendation Maurice Rosenberg made in 1958 remains appropriate: “So pivotal to the successful functioning of the federal rules are effective and efficient sanctions for discovery that at the earliest practicable moment revisions should be made.” Sanctions to Effectuate Pretrial Discovery, 58 Colum. L. Rev. 480, 497 (1958).Google Scholar

153 Some of the judges we interviewed indicated that they recently have become aware of the need to police the system more aggressively. See also Renfrew, Discovery Sanctions, supra note 63, at 282; FJC, Judicial Controls, supra note 38, at 24–25; S. Werner, Mark, Survey of Discovery Sanctions, 1979 Ariz. St. L.J. 299, 316; Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033 (1978).Google Scholar

154 See, e.g., McKinstry, supra note 10, at 793, 799–801; Cutner, Discovery, supra note 13, at 955 & n.63; Cohn, Survey, supra note 13, at 294–95; Smith, supra note 63; Antitrust Commission, Report, supra note 27, at 518; Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 983–93; Ebersole & Burke, Discovery Problems, supra note 12, at 65, 70. (Ebersole and Burke also point out, however, that increased use of the sanctioning authority is not a panacea for the system's ills, at 75–76.).Google Scholar

155 Brazil, Civil Discovery, supra note 2, at 865–67.Google Scholar

156 Ellington, Study, supra note 16, at 117–23.Google Scholar

157 See, e.g., Peckham, Judge as Manager, supra note 34, at 803, 804.Google Scholar

158 I discuss the rationale for this approach and the problems caused by it at pp. 931–33 infra.Google Scholar

159 The attorneys interviewed by Ellington join this chorus. See Ellington, Study, supra note 16, at 58–59.Google Scholar

160 Ebersole and Burke emphasize that the causes of the discovery system's ills are too numerous and complex to be remedied by the single solution of more sanctions. See their Discovery Problems, supra note 12, at 75–76.Google Scholar

161 This view has been expressed also by former United States District Court Judge Charles B. Renfrew: “Sanctions cannot solve the entire problem; but, in combination with other remedies, they can help to control the misconduct of participants in the judicial process.” Renfrew, Discovery Sanctions, supra note 63, at 267.Google Scholar

162 Ellington, Study, supra note 16, at 5, 62–67.Google Scholar

163 See Renfrew, Discovery Sanctions, supra note 63, at 272, discussed infra at pp. 946–47. See also Ellington, Study, supra note 16, at 57, 60–61.Google Scholar

164 See Cutner, Discovery, supra note 13, at 982–83, where the author argues that the system would be improved if the scope of judicial discretion not to impose at least financially compensatory sanctions was reduced, thus making expense awards more automatic. See also Hufstedler & Nejelski, supra note 10, at 967, where the authors suggest:. Existing rules deal with discovery abuse, but recent studies have confirmed the general feeling that lawyers are reluctant to ask for and judges are reluctant to use these sanctions. The action commission has been studying the feasibility of experiments with either greater enforcement of current rules or modifications which would make the use of sanctions more automatic. For example, a court could adopt a presumption that a party losing a discovery motion would normally pay the cost and attorney's fees involved in that motion.Google Scholar

165 Ellington's Study, supra note 16, at 113–14, however, suggests that these concerns might trouble judges in a broad range of cases.Google Scholar

166 See also id. at 112–13, where Ellington reports:. A third reason [for judicial reluctance to sanction] goes to the dynamics of the relationships between court and litigation bar. Often there are strong professional and social ties. Judges expressed in various ways the constraints they feel in pushing lawyers too hard. Judges should be “moderate” and must not interject themselves too far into the lawyer's case. To do so risks losing the bar's “respect.” This is not simply an avowal of timidity or reluctance to face down aggressive counsel. It also, and more truly, reflects a desire to maintain a good working relationship with the bar and a feeling that to impose a sanction on client or lawyer is to embarrass and humiliate another member of the profession. Hence, sanctions are reserved only for the most serious and persistent abuses that cause demonstrable harm to the complaining side. Discovery is, after all, engaged in by adversaries. Technical violations do not count. See also Renfrew, Discovery Sanctions, supra note 63, at 272.Google Scholar

167 Peckham, Judge as Manager, supra note 34, at 802–3.Google Scholar

168 Ellington, Study, supra note 16, at 115; see also Renfrew, Discovery Sanctions, supra note 63, at 273–74; Peckham, Judge as Manager, supra note 34, at 790–95.Google Scholar

169 Ali v. A&G Co., 542 F.2d 595, 597 (2d Cir. 1976).Google Scholar

170 Fed. R. Civ. P. 37(a), (b), (d).Google Scholar

171 See Renfrew, Discovery Sanctions, supra note 63, at 277–78.Google Scholar

172 See Peckham, Judge as Manager, supra note 34, at 801–2, and cases cited in 801 n.109. Peckham emphasizes the importance of focusing the sanction on counsel, when appropriate, and the effectiveness of orders doing so, in the following passage (at 802):. An order imposing a monetary sanction for the violation of pretrial rules should be tailored to avoid the possibility that an attorney's innocent client will bear the financial burden. The judge should carefully consider the attorney's explanation for his violation, and, if the fault seems to rest with the attorney, should frame the order so as to enjoin the attorney from billing his client for the sanction imposed. It is naive to suppose that some firms will not treat such sanctions as overhead costs, eventually passing them on to their clientele. A partial solution to this problem would be to require the sanctioned attorney to serve his client with a copy of the order. This will insure that the client knows of the sanction, can guard against being billed for it, and can even discharge his attorney if he feels that the event warrants such action. Although the attorney might still be able to pass on the financial burden of the sanction as an overhead cost, this need not render the sanction a nullity. If clients are made aware of the imposition of such sanctions, and attorneys are thereby made more answerable to their clients, sanctions can hardly fail to have an effect on careless attorneys. Moreover, I believe that lawyers do not take monetary sanctions so lightly. Most lawyers would not wish to risk the damage a judicial reprimand would entail to their pride, to their professional reputations, and to their credibility with their clients.Google Scholar

173 See also Ellington, Study, supra note 16, at 115–16.Google Scholar

174 Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 993; Ellington, Study, supra note 16, at 112–13.Google Scholar

175 ABA, Code of Professional Responsibility, supra note 29, at Canon 7.Google Scholar

176 Id. EC 7–3.Google Scholar

177 Brazil, Civil Discovery, supra note 2, at 825, 833; Ellington, Study, supra note 16, at 55–57.Google Scholar

178 Brazil, Civil Discovery, supra note 2, at 836.Google Scholar

179 See, e.g., Fisher v. Harris, Upham & Co., 61 F.R.D. 447, 449 (S.D.N.Y. 1973).Google Scholar

180 Kutak Commission, Model Rules, supra note 29.Google Scholar

181 See Nordenberg, Discovery Reform, supra note 13, at 586.Google Scholar

182 See Fed. R. Civ. P. 26(b)(1). During an interview with the author, former United States District Court Judge Charles B. Renfrew expressed grave doubts about the feasibility of the doubt-resolution rule I propose in the text. Renfrew believes that lawyers would find it next to impossible to follow the rule I suggest during pretrial of civil matters and to follow diametrically opposed directives while representing criminal defendants. He noted that this “double standard” could create especially severe strains for an attorney representing a client who was simultaneously a defendant in civil and in criminal proceedings.Google Scholar

183 See Brazil, supra note 21, at 1298–1303.Google Scholar

184 Fed. R. Civ. P. 37(d).Google Scholar

185 See 48 F.R.D. 538–42 (1970).Google Scholar

186 Id. at 540.Google Scholar

187 Id.Google Scholar

188 Ellington described this kind of judicial thinking about sanctions in the following terms (in his Study, supra note 16, at 111–12):. Why, again, are judges unwilling to impose sanctions?.…. One factor might be called the Clean Hands Doctrine, (or, He who would seek sanctions against an opponent must himself be without fault). Judges often are influenced when asked to impose a sanction by how diligently and correctly the moving party has himself or herself behaved in seeking and allowing discovery in that case. Where the moving party has likewise hindered or obstructed discovery or has been negligent or careless in enforcing discovery remedies, the court is likely to order discovery without sanctioning non-compliance. Although not always openly acknowledged, it may often be the case that to obtain sanctions one must come into court with “clean hands.”. Ellington cited ACF Indus., Inc. v. EEOC, 577 F.2d 43 (8th Cir. 1978), cert, denied, 439 U.S. 1081 (1979) (sanction reversed, in part because both sides had displayed dilatory tactics).Google Scholar

189 Mark S. Werner has described how one judge responded to this problem:. Judge Porter was faced with opposing parties whom he characterized as both being at fault in unnecessarily obstructing discovery efforts. He proceeded to impose the expense sanction on both parties and their attorneys in a novel manner, designed to avoid a situation where the sanctions imposed on both sides cancel each other out. The attorneys for each side were assessed for the expenses incurred by the opposing party by reason of the attorneys' failure to comply with a court order concerning a discovery conference and filing of a discovery conference report. Their clients were prohibited from indemnifying or compensating them for the amount of the sanctions imposed. In addition, plaintiffs (but not their attorneys) were ordered to pay defendants for expenses caused the latter by plaintiffs' failure to comply with a court discovery order; and defendants (but not their attorneys) were ordered to pay plaintiffs for expenses caused the latter by defendants' failure to provide certain requested information, where the court found defendants' position to be without substantial justification. Werner, supra note 153, at 314–15, commenting on Associated Radio Serv. Co. v. Page Airways, Inc., 73 F.R.D. 633 (D. Tex. 1977).Google Scholar

190 In this situation some state courts have resorted to imposing financial penalties and having them paid to the state or court, rather than to opposing counsel. See, e.g., Comment, Financial Penalties Imposed Directly Against Attorneys in Litigation Without Resort to the Contempt Power, 26 UCLA L. Rev. 855, 881 (1979). The solution I propose in the text to the wash problem minimizes the risk that troubled one judge we interviewed: he feared that judges might be tempted to abuse their authority to sanction if they had the capacity to direct the money the offenders paid either into the coffers of the court itself or to a favorite charity or institution.Google Scholar

191 Fed. R. Civ. P. 37(a)(3) merely declares: “For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.”.Google Scholar

192 Many of the lawyers we interviewed complained that the quality of the responses they receive from other lawyers is so poor that interrogatories already are of very limited utility. See also Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 955.Google Scholar

193 See generally Note, supra note 135; Comment, supra note 190.Google Scholar

194 Fed. R. Civ. P. 37(b)(2)(E), (d) (emphasis added).Google Scholar

195 48 F.R.D. 538, 540 (1970). Ellington reads the provision in Rule 37(a) as “according successful movants a presumptive right to recover their reasonable expenses … unless the losing party was substantially justified in resisting discovery.” Ellington, Study, supra note 16, at 5.Google Scholar

196 Fed. R. Civ. P. 37(b)(2), (d) (emphasis added).Google Scholar

197 Ellington, Study, supra note 16, at 3–6.Google Scholar

198 Flegal & Umin, We're Not There Yet, supra note 27; Rosenberg & King, Curbing Discovery Abuse, supra note 13; American Bar Association, Section of Litigation, Second Report of the Special Committee for the Study of Discovery Abuse (Jan. 1980), reproduced in 5 Litigation News 9 (Apr. 1980); Kaminsky, Proposed Federal Discovery Rules, supra note 13, at 922–23, 990–91.Google Scholar

199 Brazil, Civil Discovery, supra note 2, at 825, 831.Google Scholar

200 Id. at 831; but see Ellington, Study, supra note 16, at 92–102, 121.Google Scholar

201 The difficulty of determining what constitutes excessive discovery or overdiscovery also is an obstacle to effective judicial restraint on these forms of abuse. See, e.g., Rosenberg & King, Curbing Discovery Abuse, supra note 13; Ebersole & Burke, Discovery Problems, supra note 12, at 76.Google Scholar

202 28 U.S.C.S. § 1927 (Cum. Supp. May 1981).Google Scholar

203 See Roadway Express, Inc. v. Piper, 447 U.S. 752 (June 23, 1980).Google Scholar

204 See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976); Note, supra note 153.Google Scholar

205 Renfrew, Discovery Sanctions, supra note 63, at 269–70.Google Scholar

206 United States v. Ross, 535 F.2d 346 (6th Cir. 1976); West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir. 1971); Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163 (7th Cir. 1968), cert, denied, 395 U.S. 908 (1969). See also Werner, supra note 153, at 323.Google Scholar

207 Legislative history of Pub. L. No. 96–349, 96th Cong., 2d Sess., in [1980] U.S. Code Cong. & Ad. News 2716, 2782–83.Google Scholar

208 Id.Google Scholar

209 Roadway Express, Inc. v. Piper, 447 U.S. at 767 (emphasis added). Apparently five justices subscribed to the views Justice Powell expressed in this opinion about the court's inherent powers. See id. at 764 n. 11, and Justice Blackmun's partial concurrence, id. at 768.Google Scholar

210 48 F.R.D. 538, 541 (1970).Google Scholar

211 Advisory Committee, Proposed Amendments, supra note 11, at 23.Google Scholar

212 Id. at 23–24.Google Scholar

213 Id. at 24.Google Scholar

214 Fed. R. Civ. P. 11, as currently phrased, declares that an attorney's signature on a pleading “constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.” The Advisory Committee's Proposed Amendments include a substantial amplification of Rule 11's certification requirement. See Advisory Committee, Proposed Amendments, supra note 11, at 6–10.Google Scholar

215 Risinger, D. Michael, Honesty in Pleading and Its Enforcement: Some “Striking” Problems with Federal Rule of Civil Procedure 11, 61 Minn. L. Rev. 1, 34–37 (1976). For an application of Rule 11 after publication of Risinger's study, see Overmyer v. Fidelity & Deposit Co., 554 F.2d 539 (2d Cir. 1977) (frivolous appeal).Google Scholar

216 Advisory Committee, Proposed Amendments, supra note 11, at 27.Google Scholar

217 Id. at 24.Google Scholar

218 The Advisory Committee's proposed note confirms that the rule is designed to deprive the court of the discretion not to sanction violations. The committee declares: “The new rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g). The nature of the sanction is a matter of judicial discretion.”Id. at 28 (emphasis added).Google Scholar

219 For elaborations of the argument that the norms in Rule 37 are neither clear-cut nor stable, see generally Comment, supra note 190; Note, supra note 135; Note, supra note 153.Google Scholar

220 The Advisory Committee's note confirms the clear import of the rule by declaring: “The nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circumstances.” Advisory Committee, Proposed Amendments, supra note 11, at 28.Google Scholar

221 Helen Cutner comes close to articulating this view in her vigorous essay Discovery, supra note 13, at 983. Chief Judge Peckham appeared to acknowledge this when he recently wrote: “It seems reasonable that a party who has been inconvenienced by his opponent's violation of a pretrial order or rule should be entitled to recover his costs and attorney's fees.” Peckham, Judge as Manager, supra note 34, at 801. For a cautiously contrary view, see Ellington, Study, supra note 16, at 121–22.Google Scholar

222 Ellington reports, for example, that judicial reluctance to sanction “reflects a desire to maintain a good working relationship with the bar and a feeling that to impose a sanction on client or lawyer is to embarrass and humiliate another member of the profession. Hence, sanctions are reserved only for the most serious and persistent abuses that cause demonstrable harm to the complaining side.” Ellington, Study, supra note 16, at 113.Google Scholar

223 See the Advisory Committee's note explaining the 1970 amendments of Rule 37, 48 F.R.D. at 541–42.Google Scholar

224 The Committee of Conference came close to recognizing this view in its Joint Explanatory Statement for the 1980 amendment of 28 U.S.C. § 1927. While the 1980 changes do not compel courts to award “excess costs, expenses, and attorneys' fees reasonably incurred because of [the proscribed] conduct,” the Committee's Statement suggests that a judge must have a good reason for refusing to do so. According to the statement:. The managers agreed that if an attorney does violate the existing standard covering dilatory conduct, and by such conduct causes the other parties to incur expenses and fees that otherwise [they] would not have incurred, the attorney should be required to satisfy personally this full range of excess costs attributable to such conduct. [1980] U.S. Code Cong. & Ad. News 2782 (emphasis added). The support this statement offers to the argument I make in the text is limited, however, by the fact that a showing of some form of willfulness appears to be a prerequisite to invocation of § 1927. See text, supra, at pp. 936–37.Google Scholar

225 Ellington, Study, supra note 16, at 109–10.Google Scholar

226 Alyeska Pipeline Co. v. Wilderness Soc'y, 421 U.S. 240, 245 (1975). Courts have not always been careful to distinguish bad faith in the decision to commence litigation from bad faith in the manner of conducting the litigation. Each kind of bad faith has served as a basis in American courts for shifting attorneys' fees. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. at 765–67.Google Scholar

227 421 U.S. at 260, 263, 271.Google Scholar

228 Id. at 263.Google Scholar

229 See Roadway Express, Inc. v. Piper, 447 U.S. at 764–67.Google Scholar

230 28 U.S.C. § 2072.Google Scholar

231 Id.Google Scholar

232 312 U.S. 1, 14 (1941).Google Scholar

233 As the Court pointed out some 25 years later, the line between “substance” and “procedure” may be drawn in different places in different contexts, e.g., something that is “substantive” for Erie purposes may not be “substantive” for purposes of the Rules Enabling Act. See Hanna v. Plumer, 380 U.S. 460, 471 (1965).Google Scholar

234 The phrase “arguably procedural” appears in Justice Harlan's concurring opinion. Id. at 476.Google Scholar

235 Id. at 472.Google Scholar

236 Peckham, Judge as Manager, supra note 34, at 803 (footnote omitted).Google Scholar

237 Brazil, Views, supra note 2, at 240–43.Google Scholar

238 Renfrew, Discovery Sanctions, supra note 63, at 272.Google Scholar

239 Id. at 278 (emphasis added).Google Scholar

240 Neither Rule 37 nor the accompanying note makes it clear who has the initial burden of persuasion when the court initiates sanctions proceedings sua sponte. In fact, the rule does not explicitly empower the court to act on its own initiative when it perceives a potential violation. See, e.g., Rule 37(d). It also is not clear that the court is empowered to compel another litigant to conduct investigations or make evidentiary presentations for the purpose of satisfying the court's desire to ascertain whether a violation of a discovery rule has occurred. It probably is fair to assume, however, that in many instances when the court initiates sanctions proceedings sua sponte the record or events that transpire in front of the court will make the offending party's failure so obvious that the location of the burden of persuasion is a question of little or no practical significance.Google Scholar

241 Fed. R. Civ. P. 37(b) & (d); Advisory Committee's note to the 1970 amendments to Rule 37, 48 F.R.D. at 540–41.Google Scholar

242 How due process considerations affect sanctions issues is a complex subject, which I will explore in detail in a subsequent article in this series.Google Scholar

243 There will be occasions, of course, when calculating fees will be more complicated, as when the violation has affected counsel's discovery efforts over a protracted period.Google Scholar

244 The role the common law tradition plays in Seventh Amendment analysis is discussed in Ross v. Bernhard, 396 U.S. 531 (1970).Google Scholar

245 According to Wright: “There is no jury trial in a civil contempt proceeding.” 3 Charles Alan Wright, Federal Practice and Procedure: Criminal § 705 (St. Paul, Minn.: West Publishing Co., 1969). See Shillitani v. United States, 384 U.S. 364 (1966).Google Scholar

246 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Katchen v. Landy, 382 U.S. 323 (1966). Cf. Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442 (1977).Google Scholar

247 Under the current version of Rule 37 the courts generally have held that sanctions are immediately appealable only if they in effect dispose of claims or substantially impair a party's ability to litigate the merits of its position. See Robert G. Johnston, Appealability and Reviewability of Discovery Orders, 53 Chi. B. Rec. 210 (1972). See also Cutner, Discovery, supra note 13, at 947–48. Under the sponsorship of the Federal Judicial Center, the White Center for Law, Government, and Human Rights at the Notre Dame Law School has prepared a study in which the authors report:. Sanctions other than dismissal or default are not “final orders”; they are interlocutory in nature and are re-viewable only when an appeal is taken on a final order. A final judgment is rarely reversed because of an action taken during pretrial. Some discovery orders become moot during the course of the proceedings, and, therefore, are not subject to review on appeal. Interlocutory orders may be reviewed immediately, however, by writ of mandamus or prohibition, by statutory permissive appeals, and under the collateral order doctrine. Robert E. Rodes, Jr., Kenneth F. Ripple, & Carol Mooney, Sanctions Imposable for Violations of the Federal Rules of Civil Procedure 102 n.40 (Washington, D.C.: Federal Judicial Center, July 1981) (citing, inter alia, Johnston, supra this note). It may not be safe to assume, however, that the law developed under current rules would be applied without change to rules reformulated along the lines I propose.Google Scholar

248 Fed. R. Civ. P. 52(a).Google Scholar

249 Some courts also have ordered an offending attorney's name indexed in court records “in the event his professional conduct in any other connection shall become a subject of inquiry.” Redd v. Shell Oil Co., Cir. No. C104-71 (D. Utah, Dec. 2, 1974) A.T.R.R. (BNA) No. 694 (12/24/74), A-8, A10-12. See also American Auto. Ass'n v. Rothman, 104 F. Supp. 655 (E.D.N.Y. 1952). 250. I use the phrase “judicial officer” rather than the word “court” because there may well be occasions when magistrates or special masters will be empowered to make the decisions described in the rule. The reference in the last sentence to “imposing or recommending” other sanctions reflects the fact that there are some kinds of sanctions that magistrates or special masters may not impose on their own authority.Google Scholar

251 I am indebted to Deborah Ramirez, a 1981 graduate of the Harvard Law School, for the phraseology of this last sentence.Google Scholar