Adversarial Justice, Professional Responsibility, and the New Federal Discovery Rules

Abstract

There can be little doubt that the most controversial amendment among the 1993 civil rule revisions is the new Rule 26(a) provision requiring early mandatory disclosure of discovery information. As the draft rule worked its way through the Advisory Committee on Civil Rules, large segments of the practicing bar assiduously opposed the new disclosure regime but subsequently failed to scuttle the new Rules in Congress. Justices Scalia, Thomas, and Souter sympathize with opponents of the new discovery provisions.

In a dissenting statement to the Supreme Court's approval of the 1993 Rules package, Justice Scalia enumerated four major objections to the new discovery rules. First, Justice Scalia argued that the new discovery requirements would not streamline the litigation process, but would probably increase burdens by adding a further layer of discovery. Furthermore, the Rule's vague disclosure standard would increase satellite litigation over interpretive questions such as what information is “relevant,” what constitutes “disputed facts,” and whether each side adequately complied with the Rule.

Second, Justice Scalia objected that the new federal mandatory disclosure rule was imprudent and premature in light of local experimentation under Civil Justice Reform Act plans. He thought it unwise “to subject the entire federal judicial system at once to an extreme, costly, and essentially untested revision of a major component of civil litigation.” Third, Justice Scalia expressed concern that “this revision has been recommended in the face of nearly universal criticism from every conceivable sector of our judicial system, including judges, practitioners, litigants, academics, public interest groups, and national, state and local bar and professional associations.” Justice Scalia's fourth criticism was the dissenters' most far-reaching: He wrote that the new disclosure regime would place “an intolerable strain” upon lawyers' professional responsibilities that would counter the American judicial system of adversarial litigation. This concern represented the dissenters' most apocalyptic vision of the amended Rules, striking at the very core of the American philosophy of dispute resolution.

Of all the dissenters' objections, this professional responsibility concern is the most interesting. The experience of federal practitioners in the next few years will reveal whether the first three complaints-that new Rule 26(a) is burdensome, that it is premature, and that the revision should not have been promulgated over the objections of the legal community-are warranted. In the same way that a decade of Rule 11 litigation revealed the fault lines in that Rule's revision, another decade will test the dissenters' hypothesized problems with the new discovery regime.

But the objection that the new disclosure rules will strain lawyers' professional responsibility duties and fundamentally alter American jurisprudence is sweeping and stunning, if not subtle. If we are at the edge of a paradigm shift, will new Rule 26(a) be responsible? Has Justice Scalia identified the central issue relating to discovery reform, or has he merely stirred alarmist fears with a hyperbolic forecast?

This Article focuses on Justice Scalia's concern that new Rule 26(a) creates a tension with lawyers' professional responsibility obligations and therefore that the Rule will undermine, if not radically alter, the traditional American system of adversarial justice. If federal judges interpret and apply the new discovery rules as compromising the attorney-client privilege or attorney work-product doctrine, then the new discovery regime will fundamentally change the adversarial system. However, in the absence of such a radical departure from traditional doctrine, Justice Scalia's prediction will prove to be more overheated than necessary.