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Judicial Conference Adopts Rules Changes - Confronts Projected Budget Shortfalls

September 15, 1999

Contact: David Sellers, 202-502-2600

The Judicial Conference of the United States today approved a series of changes to court rules aimed at bringing uniformity to the pretrial exchange of information while reducing expense and delay in certain civil cases. At its biannual meeting in Washington, D.C., the Conference also received an update on the Judiciary’s potentially severe budget shortfall for fiscal year 2000, which begins October 1.

While it will require $4.3 billion to operate the Judicial Branch in the upcoming fiscal year, the Senate has appropriated only $3.8 billion and the House $3.9 billion. A House-Senate conference to determine a final funding level is expected to occur soon. In a letter last month to congressional leaders, Chief Justice William H. Rehnquist said that the Senate level is “both unjustified and impractical” and the House level would “have a noticeable impact on court operations.”

Cognizant of the budget constraints facing Congress, the Judiciary requested funding that would allow it to provide only the same level of services as FY 99, despite continuing growth in caseload. It also agreed to a court staffing freeze for the second year in a row. Nevertheless, depending on final funding levels, all court employees still could be furloughed for two weeks, money to pay lawyers who represent indigent defendants could run out next summer, and the number of probation and pretrial services officers (who supervise 100,000 released felons) could be cut - seriously compromising public safety.

It takes less than two-tenths of one percent of the entire federal budget to run the Judicial Branch. A copy of the Chief Justice’s letter to Congress, a formal Judiciary appeal letter, and other background on the Judiciary’s budget can be found on the Judiciary’s Internet site (www.uscourts.gov, click on “What’s New.”)

The amendments approved today by the Conference affect the Federal Rules of Civil Procedure and follow a three-year study and extensive discussion by judges and lawyers across the country. These particular rules impact primarily on the pretrial exchange of information by attorneys known as “discovery.” Discovery represents 50 percent of the litigation costs in the average case and up to 90 percent of the litigation costs in cases in which it is actively used. The changes approved by the Conference, include the following:

Initial Disclosure — Rule 26(a)(1): This rule provides for the early automatic exchange of pretrial information, but permits courts to opt out of this requirement, leaving a wide variety of practices across the country. The amendment approved today provides for a consistent national rule by removing the opt-out provision. Unlike the existing rule, however, the amended version provides that only information that is favorable to the disclosing party need be revealed.

Scope of Discovery — Rule 26(b)(1): Many lawyers want greater judicial involvement to control excessive discovery. This amendment enhances a judge’s authority to get involved in particularly contentious discovery. It states that an attorney is still entitled to receive without judicial intervention information that is “relevant to the claim or defense” of any party. However, discovery that goes beyond this and the subject matter in general would be allowed only when ordered by a judge

Depositions — Rule 30: The pretrial questioning of potential witnesses, known as “depositions,” often are the most expensive form of discovery. The amendment adopts a presumption that no deposition should last more than one seven hour day, unless approved by the court.

Congress has authorized the federal Judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate right of Congress to reject, modify or defer any rules. Because of the potential impact of rules changes, the process for amending rules typically involves a minimum of seven stages and usually takes three years. The rules changes approved today by the Conference will now be sent to the Supreme Court for consideration later this year. After conducting its review, the Court normally transmits proposed rules amendments to Congress by May 1. Congress has a statutory period of at least seven months to act on the rules submitted by the Court. If Congress does not enact legislation impacting on the rules, they take effect as a matter of law on December 1.

The Judicial Conference of the United States is the principal policy-making body for the federal court system. The Chief Justice serves as the presiding officer of the Conference, which is composed of the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system and to make recommendations to Congress concerning legislation involving the Judicial Branch. A list of Conference members is attached.