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In April 2000 the United States Supreme Court promulgated a package of Proposed Amendments to the Federal Rules of Civil Procedure that took effect on December 1, 2000, without Congressional intervention. As one commentator observed, “(a)ll of (the proposed amendments) promise to have a significant effect on discovery practice.” One Proposed Amendment--narrowing the scope of discovery available pursuant to Rule 26(b)(1)--was particularly controversial before both the Advisory Committee, the Standing Committee, and the Judicial Conference. Nonetheless, the Proposed Amended Rule narrowing scope proceeded from the Court to finality with no intervention by Congress. Proponents of the change minimized criticism by characterizing the change as modest. Also, Congress faced an election year, adjourned early, and focused on more high profile political issues. Republican leaders in the House and the Senate generally adopt a friendly view toward any proposal that appears to promise less civil litigation activity. The proposal to narrow the scope of discovery will generally aid defendants at the expense of plaintiffs, particularly in product liability and civil rights litigation.

Despite its seemingly charmed life, the Scope Amendment is unwise for a number of reasons. Most substantively, it accrues to the detriment of claimants, particularly those of modest means but also major claimants such as the United States government, while largely benefiting defendants. Procedurally, the Scope Amendment is likely to be an inefficient disaster forcing courts to confront thorny issues of differentiation in the application of a new Rule, spurring attendant transaction costs and out-of-pocket costs for clients paying for the attorney's time navigating this new sea of scope. One trial judge who opposed the Scope Amendment predicted ten years of litigation to determine the application of the new rule, with no redeeming reward for the effort.

Publication Citation

52 Ala. L. Rev. 529 (2001).