Automatic Disclosure of Documents: The English Experience - Part 3 Chapter 13 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
On December 1, 1993, a variety of changes to the Federal Rules of Civil Procedure went into effect. By far the most controversial of these changes was the adoption of the new Rule 26(a)(1) requiring automatic disclosure even before any discovery requests are made. Critics of this revision are numerous, led by Justice Antonin Scalia, who, in his opinion (joined by Justices David Souter and Clarence Thomas) dissenting from the Supreme Court’s approval of the 1993 amendments, termed the automatic discovery provisions of Rule 26 “radical,” “potentially disastrous,” and “certainly premature.”
One of the recurring criticisms of the enactment of the automatic disclosure provisions of Rule 26 is that such a major shift in federal practice was implemented prematurely and without sufficient practical implementation on a smaller scale. Only one state, Arizona, and three federal district courts, the Central District of California, the Southern District of Florida, and the District of Guam, had a similar rule and the local rules of the three federal courts were less stringent. However, federal litigants do have one source to provide them with a glimpse of how parts of the new Rule 26 may operate— English law, where Order 24 of the Rules of the Supreme Court has mandated automatic discovery for over 30 years.
The New Rule 26
The automatic discovery provisions of Rule 26 now read, in part, as follows:
(a) Required Disclosures; Methods to Discover Additional Matter
(1) Initial Disclosures. Except to the extent otherwise stipulated or directed by order or local rule, a party shall, without await-ing a discovery request, provide to the other parties:
(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the in formation;
(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings; . . . .
The last paragraph of Rule 26(a)(1) then states that such disclosure must be made “at or within 10 days” after the meeting of the parties newly required by Rule 26(f).
According to the advisory committee notes, these changes were enacted “to accelerate the exchange of basic information about the case and to eliminate the paper work involved in requesting such information” leading to “savings in time and expense.” According to Justice Scalia, however, these goals are precisely what the new Rule 26 will not accomplish.