Commentary and analysis of the Supreme Court’s approval of revisions to the Federal Rules of Civil Procedure during the 1992-93 Term. After four years of contentious debate, the Court approved revisions to Federal Rule of Civil Procedure 11 as well as to the discovery rules. The amendment to Rule 11 approved a more forgiving version of the rule, providing a “safe harbor” for attorneys concerning the truthfulness of their pleadings. The Advisory Committee on Civil Rules not only eliminated mandatory sanctions for litigious misconduct, but gave lawyers a safe harbor to fix their mistakes within 21 days of receiving notice from opposing counsel of a potential Rule 11 violation. The article discusses the prior Rule 11, which was amended in 1983 to put “teeth” into the existing rule, and the ten-year period of excessive sanction motions and penalties under that version of the rule. Also included is a discussion of various punitive Supreme Court decisions construing Rule 11 during this period. The Court also approved a wholesale revision to the federal discovery rules that may radically change, but not eliminate gamesmanship during the discovery process. The keystone to this set of revisions is a mandatory yet informal discovery process that requires attorneys on both sides of the docket to divulge certain materials without waiting for a formal discovery request. The Advisory Committee also amended rules relating to depositions and interrogatories. In the Court’s order approving the rule package, Justice Scalia articulated several major objections to the amended rules, which are reviewed in this article.
Linda S. Mullenix, Supreme Court Review: Civil Rules Revisions a Mixed Bag, National Law Journal, Aug. 23, 1993, at S14.