 the 1993 amendments to the Federal Rules of Civil Procedure, new challenges in court administration. While viewing this program, you should have with you copies of the Federal Rules of Civil Procedure, your local rules, your district's expense and delay reduction plan, the outline accompanying this program, and the sample local rules and other material attached to the outline as appendices. If necessary, please stop the tape and gather these materials before proceeding further. This program was recorded on December 16, 1993 in Washington, D.C. Your narrator is Bruce Clark. On December 1, 1993, a number of significant amendments to the Federal Rules of Civil Procedure went into effect. These amendments apply to all cases commenced on or after December 1, 1993 and all cases pending on December 1, 1993 in so far as just and practicable. Of course, these amendments make important substantive changes in the civil rules, but they also raise important issues of court administration. First, the new rules are novel and controversial, so there's a special need for each district court to educate the bench and bar about them. Second, many of the new rules contain provisions authorizing individual districts to modify them or even opt out of them by local rule or court order. Third, the new rules take effect during a time when, pursuant to provisions of the Civil Justice Reform Act, individual districts are implementing civil justice expense and delay reduction plans tailored to attack the particular cost and delay problems in their districts. The interplay of these developments makes this a time of great change in experimentation in the area of civil justice. It also poses some very practical and immediate problems that each district court will have to resolve in the way it thinks best. Specifically, individual districts will need to act quickly to identify any inconsistencies or conflicts between the new civil rules, their local rules, and the provisions of their expense and delay reduction plans, decide which of the new civil rules, if any, they intend to modify or opt out of by local rule, draft and implement the resulting new local rules, modify existing local rules and expense and delay reduction plans where necessary, and ensure that members of the bench and bar are familiar with all resulting changes in local practice. With us today to discuss these issues, primarily within the context of the new discovery rules are Judge Patrick E. Higginbotham of the United States Court of Appeals for the Fifth Circuit, current Chair of the Advisory Committee on Civil Rules of the United States Judicial Conference, Judge Sam C. Pointer, Chief Judge of the United States District Court for the Northern District of Alabama, and past Chair of the Civil Rules Advisory Committee, and Judge William W. Schwerzer, Director of the Federal Judicial Center. Judge Schwerzer will moderate the discussion. Let's begin by identifying the major problems that confront the courts at this time. The problems arise because quite a number of new federal rules have been adopted that make significant changes in the procedure. In addition to that, the last round of civil justice reform, expense and delay reduction plans is now being implemented in a number of courts. All of that's taking place in a context of local rules that exist now and the standing orders that many judges have that govern the procedures in their own courts. So some of the problems that courts confront are these. First, the question of the application of the new federal rules to pending cases. And the order of the Supreme Court provides that these amendments were to take effect on December 1, 1993, and shall govern all proceedings and civil cases thereafter commenced, but also insofar as just and practicable all proceedings and civil cases then pending. The second source of problems is the fact that a number of the new federal rules give a local option to courts to permit them to vary the rule, either by local rule or by order in a particular case or in some other fashion. The third source of problems arises from possible inconsistencies or perhaps even conflicts between local rules and the Civil Justice Reform Act plan of the district. And I believe, Sam, that you recently had occasion to observe an illustration of that. Bill, I was in one district here very recently and was looking at their local CJA plan and their local rules and having a discussion and they said in their local rules, we disavow, we do not adopt 26A1, the initial disclosure. Fine. However, then you go and you look at their CJA RA plan. And in the CJA RA plan, they called for people to appear at a scheduling conference and to have with them at that time a list of potential witnesses and a list of potential documents. So in fact, what the CJA RA plan did was simply adopt a variant of 26A1. With that really sort of realizing that's what was happening. And I saw a lot of similar illustrations with that in some other districts. So that puts a premium on making it clear to lawyers and judges what the rule is going to be and just what's expected of people. And we'll be talking about that in a minute. And the final complication arises from the fact that in many instances individual judges have their own standing orders which creates an additional potential of inconsistency, a conflict between the plan and the newly adopted national rules and perhaps even local rules. So obviously there is a premium on paying attention to the relationship between the CJA RA and the local rules. And Pat, do you want to address that issue? It's very important for the judges, the local judges to keep in mind that lawyers from out of the district and locally need a central repository to look to in order to locate the rule. What is the optical rule? Particularly in a period of transition they'll be looking for the rule. The CJA RA plans themselves may not be the best vehicle to express or to capture these rules. It may be a better practice to state in local rules all the rules that will control the operation of your court and leave to one side the CJA RA plans themselves as a repository of rules. That has a number of benefits. So CJA RA plan are often stated in very general language. They do not deal with the specifics of discovery that the judgment in the local court may want to deal with. Bottom line is that don't rely upon the CJA RA plan itself but rather go to rules and have them stand on their own bottom. Might be the better course. Obviously in some districts the CJA RA plans are more detailed. But even there if you have a set of rules and the rules control that tells everyone that's what you look to. CJA RA plans are not always available on Lexus or other places for research. In other words that seems to me that now that we're confronted with a lot of choices my reaction to it would be to choose the rules. That's the familiar place to look for these things. And I've certainly heard lawyers express great uncertainty over just what the legal statuses of a plan and whether it represents an enforceable set of rules and how they relate to the local rules. Exactly because they say well gee what's Congress doing about the CJA RA plan? What's the real effect of that? Is a plan a rule? It seems to me that the way to resolve that for all the people that would be concerned about it is to go to rules and even though you have some repetition almost by definition you hand to the lawyer the set of rules. These are the rules that control the court and they don't have to go chase you down in a plan somewhere. I think it's better if the lawyers do not ever have to go and look at the local CJA RA plan and whatever is going to actually govern the way they deal with their cases is going to be contained in the local rules even if it's a duplication but at least you don't have to go chasing off to something that's hard to read and not always available. I think that's a very important point. Another point courts might consider as they go about looking at their local rules in the context of this particular situation now is whether all of those local rules that they have now are really needed in light of the very particular provisions that are now found in many of the national rules. So if there is for example a local rule dealing with expert disclosure the court might want to look at that and see whether it's really needed apart from the question of conflict or inconsistency whether it's really needed if the local rule is permitted to go into effect. Well, obviously in this situation courts are going to need to think about adopting local rules that deal with some of the specific subject matter that is in the new national rules and we're going to move on to looking at the particular subjects and how they might be addressed in local rules and you have received together with this videotape some draft generic rules that might be helpful in starting out on that and Sam do you want to launch that discussion? I think first it's important to understand the thing about the actual adoption of local rules and you really directed here towards section 2071 of title 28 as well as local rule 80 or national rule 83. There's a contemplation that before you have a local rule adopted you will want to have an advisory group that considers the matter the court's not bound to accept what the advisory group does but then there'll be a proposed local rule that is published available to be looked at an opportunity for the members of the bar and the public to comment then the adoption by the court or the modification it then can take effect at that point but coppers are sent off to the judicial circuit and to the administrative office that's the typical approach contemplated in the national rules and the statute this process however particularly as it relates to these rules could be a problem because some courts need to do something very quick and do not want to wait for that full process particularly as to those rules that have just come into effect under section 2071E a court can adopt local rules without first going through that publication and comment phase if that's on the basis that there's an immediate need for adoption if you do that then however you should after that's been adopted really as a temporary measure then go through a process of publication get comment see if you need to make any changes but you can go ahead and actually adopt without having to wait for that period of public comment well can a court shortcut all of that by simply adopting a general order do you think that certainly would be one possibility that probably has the same effect as adopting this local rule without any prior notice for an emergency yes but the difficulty then is this is a potential fourth source of confusion and now instead of just having national rules local rules and CJRA plan now you have a general order and so you then are going to have one more thing to untangle so I would recommend to do it by local rule rather than general order you sound like this is a true opportunity for the local court to do some pruning of some of the old rules that they come up with a set of clean rules and almost to start afresh as best they can because it now have the real difficulty as you say with the four different sources and then you have individual judges within them for example a large metropolitan district who may have their own set of rules to govern their court and if we keep multiplying that we create a very complex procedural array to confront any litigant that comes in pruning may be a real opportunity to do something I think it's a good idea and we may get into some things as we go down the specifics on how to do that there is the problem that particularly for courts that have very elaborate local rules the process of pruning good itself involves a lot of work which maybe they'd rather go ahead and do something to address the immediate problems rather than get into pruning when I was thinking about a short term solution by order or you talked about or some other intermediate step but the court then looking for a longer term solution to the problem of commencing the re-examination of its local rules well you know now that all the civil justice reform act plans are supposed to have been completed and the advisory groups have done their job this might be a good time to invite an advisory group to examine the local rules and ask them to take a look at it where they can be pruned let's move on to the next section this is supposed to be non-controversial what we're doing here as Bill indicated that was sent out with this videotape some materials and one of the items is would be three sets of sample local rules that is how local rules could one how they might look if you didn't want to do any local variants other than specify what cases they apply to but otherwise you adopt the national rules a second variant is you don't want anything to do with initial disclosure you want to opt out all together from any kind of initial disclosure so we have a sample set that will show how that could be done and third the court might want to have something which it has local variations it wants to change the scope of initial disclosure about documents it wants to change something about the time of the meeting and so we have a third set that could be used as a guide for courts to look at in doing this yeah I think three major things that in all of these rules are important to look at one is to try to deal with the effective date problem that is as you said Bill it applies to all pending cases on December 1st to the extent just and practicable well there's an option for the local rules to say what is just and practicable how do we want them to apply so the first thing is the effective date the second thing is to see what categories of cases you do not want a particular type of new provision to apply to that is to exempt certain cases from a particular requirement and then the third part of the local any local rule is to decide if there are any local variations that you want in your district where that's permitted to fashion that and these three samples try to illustrate how you could do that maybe I can best get into it if I take or start out with what I believe is the functional way to approach local rules at least this is what I did when I got involved with our own local rules this is going subject by subject by subject the first thing I would look for in deciding on the local rules would be to identify the cases in which there is to be no formal discovery without court permission and that's going to be social security cases government collection cases whatever but cases in which you're not going to have discovery ordinarily and because this is going to be important because then those cases are going to be also carved out of any requirement for meeting of council or disclosures anything of that sort well correspondingly Sam you would have a sort of a parallel carve out dealing with the prohibition against the taking discovery at all under the present rules of course in 2016 you cannot even start discovery until they have the meeting of council under 26F but we have the problem that there are certain cases emergency cases which perhaps ought to be exempted from the operation of that prohibition against discovery so when we're talking about these exemptions we can just one of the parallel provisions would be look at 26D and I noticed that you've prepared a suggested one suggestion for the judges in 261C language of exclusion that might deal with certain categories of cases that is on these sample forms that are being sent out 26.1C2 that could show some language about this problem of when to commence discovery TRO routine case those kind of cases and emergency matters of that sort where the parties are going to have to launch discovery immediately one would contemplate that they might and the court would examine those by category if they don't treat them by rule of category then the result will be either the parties by stipulation agree to do it or they'll be immediately back to the court and if you're going to anticipate that problem in a by category of cases maybe that's the way to do it is by rule and 26C1 would be the out my suggestions no more you start with trying to define the case in which there's not ordinarily going to be any discovery without the court's permission the next place I would suggest is that you then decide what cases in addition to those do you want to exempt from the requirement of the meeting of parties that's 26F that's 26F this is where the national rule says that except in categories of cases exempted by local rule the parties are required the attorneys are required to meet and to talk about the case talk about potential discovery and submit a report to the court Sam I would think that that category would be narrowly defined because I read the rules the meeting of the parties is such a critical point of the whole discovery rules here that it would seem to me that we ought to be very careful about cutting the lawyer loose from that basic obligation I don't see anything bad about a lawyer's meeting if they have the opportunity to do so so only if in other words given the nature of the case it's not practical for it to occur what I would be what I want to entertain some kind of exemption what do you think I agree that it's preferable for the local rule to be very narrow in what cases are exempt you want to exempt those in which there's not going to be any discovery you don't want to meet the counsel number two I don't think you want a meeting of parties in pro se prison litigation even though there may be discovery in that there may be some cases of a particularly complex nature that you would want to exclude from this requirement or certainly if the case is consolidated with one and there's already been that kind of meeting in a scheduling order you don't want to have a requirement for an additional one the people might want to look at 26.1 in these sample rules that were put out 26.1d is some suggested language about this exemption about the meeting of parties and the cases that should be exempted and that goes along with this matter about the categories of cases that should probably be exempt from any discovery without court order that's in 26.1 b1 there is a good reason to consider local variations on this meeting requirement such as to change maybe the time of the meeting like accelerated to the discovery a special time and for example in our district we require that that meeting be held within 45 days after the first appearance of a defendant which is a little different from the national rule you could have a change as to the time that the report is to be given to the court maybe the content would be different you might want to consider giving the parties the opportunity to agree to conduct the conference by telephone although I'm frankly of doing that in our local rule we say if their principal offices are more than 100 miles apart then they can agree to do it by telephone but otherwise we want a meeting telephone conference might invite a sort of a touch the base and run well we've done that not really achieve the purpose let's talk about the presumptive limits Pat the national rule provides for limits on depositions and discovery unless the court exempts the particular case so grants additional leave for additional discovery what about treatment by local rule of that matter one of the practical problems that will immediately jump up I think to the district judges that is the reality that these presumptive limits on the numbers of depositions and the numbers of interrogatories are simply not workable with a certain categories of large cases and not where they intended to be on the rules those are as we say presumptive those are the default rules the problem that we have to try to identify by rule the types of cases in which those kinds of limits are simply not applicable certain kinds of cases come immediately to mind defined along substantive grounds you can immediately start thinking about antitrust cases class actions and larger kinds of cases where this would not obtain I think that is going to be an area in which the court is going to have to give a lot of thought to particularly drawing on their local experience about what cases really do present those kinds of problems complexity is many times a local definition maybe a maritime matter in New Orleans is quite different from a products liability suit in Houston, Texas the local variations are such that I think they are going to have to draw on their own experiences about how to categorize that but the main point about it to me is that there is the opportunity to define by rule those categories of cases where we know from the outset from your own experience that these limits are not going to be a problem keeping in mind however that the meeting of the parties themselves we keep coming back to that meeting of the parties themselves should take care of a lot of these problems again I would be hesitant I think if I were doing it to draw that rule expansively I would I think only in those cases where it is very clear you know the case after case that is not going to be a those presumptive limits are not apical what I will reach for a rule because I would leave to the parties in the case when their first meeting to come back to a suggested scheduling order to take care of that so I think a lot of them will go out that way we have in the 26 one b2 in your materials suggested possible ways of dealing with the presumptive limits on the quantity of formal discovery and particularly numbers of deposition and lengths and such as that the matter of lengths of deposition is not in the national rules if a court wants to have that it can do so but would need to do it through the local rule same thing is true with rule 34 request and rule 36 nothing in the rules nationally but it is a power of the court through its local rules what do you think about the time limit on deposition a lot of talk about that as another limit that might be presumptively applied by local rule whatever responding to what to perceive I favored it and voted for it in the when we were considering the rules I was out voted the majority of the committee decided they didn't want to have a presumptive limit on length but we all agreed and that's the way the rule is written that the court has power through the local rule to have presumptive limits on length of deposition let's move on to initial disclosures we found one that's controversial you mean Sam's provision people might want to refer to 26.1a1 in our sort of sample rules that we are sending out it seems to me that there are three things that need to be dealt with I suppose the first in the way of a local rule is whether to opt out all together and of course there will be some courts that want to opt out all together for those that don't opt out all together there is then the issue of what kinds of cases should be exempted from the requirement of initial disclosure and that presumably would be the cases in which there is no meeting of the parties required certain specially complex cases perhaps class actions you wouldn't require the initial disclosures to be done product liability cases I would still have the products liability absolutely now they could come if they can't agree on with disputes over scope some of the product's cases again might be a very mind run lawsuit for the lawyers one of the things is any local variations and it seems to me just from what I'm hearing is that most courts that are allowing 26.1a1 to go into effect have adopted local modifications I mentioned earlier Bill the district that said they were doing away with all initial disclosures but then in effect put them in by requiring list of witnesses and documents of the town of scheduling order so that's a local modification in our particular district we made modifications as to the types of document identification that's to be made people might look at one of these local one of the sets that is being sent out showing a modification that shows that kind of change and finally there's a need to decide whether you want these disclosures to be filed with the court or not most courts provide the discovery materials are not filed and you probably would not want these initial disclosures filed with the court you certainly want the report from the meeting of the parties but as it relates to the initial disclosures I would think you would probably not want it filed unless it's all let's take a look at rule 2682 that requires certain disclosure of expert witnesses and testimony well 2682 of course really builds on the experience that had been out there for some time that many district judges were employing and it makes choices among those practices and comes up with a technique presumptive technique if you will dealing with these problems the I think one of the questions that the district courts have to deal with now is the question what local variations from those 2682 disclosure requirements ought to think about if you look at the rule you will see that the rules requirements therefore disclosing the written statement of the expert the insistence on the detail with that report etc you also see that the rule sets out the time and the sequence in which that will occur in terms of the overall lawsuit certainly locally it seems to me the court might look at the time and the sequence of disclosure when those reports will be filed and I'm talking of course about a possibility of dealing with it by a rule obviously in an individual case sufficiently complex that the court is dealing with it as a managed case the time and sequence might very well have been varied the general message of the rule is to encourage the district courts to look at this particular problem on a case by case basis except for the disclosure of the identity of the witness I think that's probably right except I think it's the time and sequence I think that the way the rule is structured the national rule contemplates this particular discovery mechanism that is that the expert has got to produce his report and you lock him into it but this is the time that's the expert who is specially retained or employed it's not somebody like the treating physician who didn't have any choice about whether to become a witness this is the professional witness if you will and it seems to me a very sound balance of the two but for our purposes here it's the timing and the sequence of those disclosures that we would look to as possible subject for treatment by local rule you want to say something about the final pretrial disclosure in 26A3 rule 26A3 calls for certain disclosures to be made in a shortly before trial in terms of the actual witnesses at trial or the actual exhibits to be offered and then calls for objections to be raised if there are any to those documents this is what courts have frequently done either by their final pretrial orders or by local rules and now it's being supplanted really by a national standard as I view it there really is not any option to opt out of this for the court as a whole certainly on an individual case basis you can do that but I do not see this as one where the district can just say we don't want to do this what it does mean though we need to look carefully at their present local rules because their present local rules frequently have something about this same subject the final disclosure of witnesses in exhibits and how that's to be done and probably those matters either be abrogated because they're being supplanted or at least be checked to make sure they're not inconsistent that could be a real problem because the national rule now is the waiver of the objection and you can have a local rule that covers the same subject matter but says nothing about a waiver of the objection another source of conflict is a lot of judges have their own set of rules each court has a set of rules tailored to their particular desires most judges are very proud of their own set of rules but it seems now that this will be another source of confusion I think it is we try to use what might be called a standing order something that is used in all cases without actually being entered in that particular case now if the individual judge does something in the particular case that defines what's to be done I don't really see a problem I think the power is there and the lawyers will know what's expected if the court is directed at that where the problem is going to come is if a judge has this standing order in that particular case and that is somehow inconsistent perhaps with national rules local rules CJRA plan what do you do? you need another hand just a word about the duty to supplement in 26E substantially enlarges the present duty to supplement discovery responses and disclosure responses and that also seems to me a rule that creates a categorical duty that is not expected to be modified by local rules except maybe as to the time when somebody should report the seasonably update any supplementations you can certainly define that by court rule as well as by order in the particular case Sam, there are a few other rules that might be and which changes have occurred that might be inconsistent with present practice I think that in going through the local rules to look for adopting these new ones you have to be looking for where there are existing local rules that are going to be inconsistent or at least create possible conflicts with these new rules new local rules but they're also going to be likely some local rules that really are outdated and obsolete in view of other changes in the national rules December of 93 or indeed the ones that went into effect December of 91 let me give you several illustrations of things to look for in the local rules might be obsolete one would be the ones dealing with the size of civil juries and alternate jurors in civil cases that's been essentially superseded by national rule on the subject that took place two years ago the issue about how you apply for attorney's fees when and how and there's so many local rules like that that basically has been superseded by new rule 54D and probably should be eliminated unless there be inconsistencies decorum at depositions the matter of interrupting questions and leading suggestive objections is a matter covered in many local rules again there's now a national rule and so the local rule probably ought to be eliminated Sam come back there for a moment to rule 54 that strikes me as a change that's going to implicate a lot of data routine work of the district court and that is now dealing with the question of attorney's fees and the timing of them and the methods for handling those what do you think about the implementation of rule 54 that lends itself to local rule or categorical treatment there are some things that a local rule to implement rule 54D could be helpful in terms of the basic structure when you file the motion for attorney's fees what should be supported at that point those things are covered by national rule but the national rule goes on to effectively authorize local courts to help come up with ideas that will reduce the amount of judicial time spent in dealing with these matters including references either to magistrate judges or to special masters and so at least one idea is I don't know of many judges who really enjoy attorney's fee award disputes you think there's going to be a lot of references here? I think the national rule is intended to broaden the authority of the court to develop special procedures to streamline the whole process of attorney's fees one thing that Barry mentioned is the addition of the provision of the gift to the district judge the control over the timing of the appeal which is an unusual provision but it's intended to make his workload a little easier but he has to make a threshold decision as to whether or not this case ought to go forward on the merits as well as the attorney's fees whether to hold it back to you such as entitlement but not amount and let that go forward those pat however are going to be done on a case-by-case basis there's no such rule there's no such thing as a local rule dealing with it has to be on a case specific basically one other thing but we'll pass to the next subject Bill and that is among the rules that took effect December 1 and they applied to all cases pending on that date of my view currently has been covered in local rules which is discovery motions many local rules have required that before discovery motions could be filed there had to be an effort to resolve the matter without to meet and confer to perhaps avoid the necessity for court ruling many courts have had something like that now the national rules have it written in and probably those local rules ought to be in effect we call the word early a strip down pruned to get rid of those things otherwise you then have arguable conflicts in the actual language it's sort of the Christmas tree effect you hang little ornaments on the local rules and they keep becoming more elaborate all the time well the meet and confer requirement is newly added to motions for protective order too we might want to move on to this practical problem get away from the actual adoption of local rules and talk about what the practical consequences are going to be to the district judges I think one item is the question of when are you going to have scheduling conferences and when are you going to have scheduling orders we're talking about 16B the old rule required a 16B order in every case not exempted by local rule it did not require a conference the new rule is identical with the old rule as far as that is concerned you've got to have an order in every case except in the categories you don't have to have a conference you should in the way the rule is constructed either have a conference or at a minimum get the report from the parties that comes out of their rule 26F meeting to structure the order if a judge issues a standard scheduling order without paying any attention to the report that the lawyers put together as a result of the 26F conference the salutary purpose of 26F will be undermined as you say that may be the most important change in these rules and judges can do things that will make that a meaningful exercise by the lawyers without paying attention to the report how do you see that happening lawyers meet and that's the only part of the court the first contact the judge has with that case will really be a report coming in so he's got that report in front of him he's got a choice, he can look at it and say well we really need to meet with the lawyers I need a conference or this is routine enough I can just go and I know the lawyers one of the things that is suggested in form 35 that illustrates the kind of report that should be expected is an indication from the attorneys well they believe an actual conference with the court would be helpful or not the judge either by taking that into account or because of the judge's own practices which may be to always have conferences would make a decision about having a conference bringing the lawyers in it can happen in the reverse in this way my own personal practice happens to be to use scheduling conferences before I have scheduling orders and I do that in almost all of my cases except the ones that you're not going to have discovery in now if I send out an order scheduling a case for a conference that then is going to trigger the obligation of the attorneys to meet and confer under rule 26 F and in turn give me a report so I have a great deal of control in terms of getting the case started earlier starting the discovery earlier by in effect having that scheduling conference set just as soon as I can as long as I have attorneys to deal with many district judges have a standard practice so that as soon as they can identify they know the defendant know all the parties that they're immediately notified for a scheduling conference and then what you do and so as I understand this then that practice you still follow that practice routinely but then the judges who have another practice can follow what they want that is they don't schedule a conference and in this case until after they've gotten a report from the attorneys and then can make a decision well they want to spend time with a conference and they'll be guided by what the attorneys work is on this and how to track the case what track to put it on well the scheduling conference seems to me to also have special utility under these rules we've been discussing that allow for adjustment of the various parts of rule 26 for example to reflect conditions in a particular case and that would be the form in which to look at for example the procedure to be used in expert disclosure the timing of experts changing the scope of some of the disclosure thing perhaps or certainly changing limits on the number of interrogatories or depositions that really ought to be looked at at the scheduling conference certainly included in the scheduling or course the other provision that parallel to this notion of the lawyers themselves meeting on their own and discussing the case first is now the very strong support in the rules of stipulation by the parties themselves the parties themselves can so long as it doesn't interfere with the set schedule of the court or trial setting can by agreement work out they're discovered set out of the discovery schedule make agreements about taking depositions the form of them and so forth without court approval without court approval that's important that they don't have to run to the court for stipulation it should be a written stipulation according to the rule but so long as they've got there what do you think about the filing of that Sam should those stipulations be filed stipulations need not be filed if the court doesn't require discovery to be filed there's no reason to have stipulations regarding discovery filed now it may be that if the court does require discovery to be filed that you might want to make an announcement in that what you've just described is significant but I think frequently overlooked change in rule 29 that it does enlarge the several of the rules after that pick back up on this same idea and they say accept is otherwise stipulated so for example this 25 interrogatories that may be included in the scheduling order nevertheless if the parties agree that 30 is needed fine you don't have to come to the court but unless the court does so the parties are free to do it themselves so they're not really grabbing authority of the court this is something the rule gives to them and it really unburdened I think one of the main things is to hopefully we'll be able to do is if we can start off with a meeting get attorneys hopefully working together being reasonably cooperative and collegial they come in to the court for scheduling conference if that is fostered they are then encouraged to conduct the further discovery in a way in which they are cooperative hopefully some of the rules cut down on the contentiousness and the like hopefully we can do a better job than we have in the past well speaking of doing a good job the thought that runs through all of this is the crucial importance of getting the word out so that the lawyers that practice in the court as well as the judges know what's expected the lawyers know what's expected of them the judges know what is expected of the lawyers and that is the thought of course that we've expressed in various ways that the rules should make it clear just exactly what the regime in the court will be you have some thoughts on what courts might be doing to further this besides what we have already said to have a clear and understandable and free of inconsistencies set of rules well there's several things that we have done that I have seen in other districts that they are doing that it seems to me very helpful one is to have the local rules actually out in publication and available to the attorneys I guess I'm a little cautious here because particularly if some courts need to do some further work on the local rules because they're in trouble right now and inconsistent I'm not sure I really want to encourage too much circulation of those materials and just create you want to wash the linen before we hang out but anyway getting the local rules out what we have done is have a one page summary of key changes I've got one in front of me it's a yellow page front and back and when the plaintiff files a case after November the 30th it's a copy of this for the plaintiff and for each defendant and it's mailed to the defendants along with the summons so lawyers can carry it in their pockets like the Miranda one but it does highlight and make it very clear and it doesn't take that many words all of the different things that they need to know at the outside of the case and that will affect them I think that can be a helpful kind of thing to do and Pat you wrote an excellent summary of the provisions to new rules that the administrative office mailed out that all the courts should have that could be made available to lawyers there are a number of those around the summaries that I think are very very useful obviously the other the usual resources at the district court now we have a lot of ends of court in these areas which take a good percentage of the trial bar seminars at those end the court inter court programs built around the rule changes involving the judges who are reduced off of members of those that's a possibility the bar, traditional bar associations all those resources have to be tapped it seems to me because there's a real problem of education judges can save themselves a lot of headaches if they get the word out for example in the way that rule 11 was changed so people know and they're going to have to be told more than once and it's going to take an effort similarly so lawyers will know that now they're expected to waive service unless there's a good reason not to so there's some significant rules where education will save the court in the long run headaches the little hand out with the bullets I think are just so good because for example that's saying rule 11 does not apply to discovery motions you don't file rule 11 motions complaining about discovery that's something that simple that direct can save you a lot of headaches one of the big things though is to try to get a hand out that captures the local rule variation the thing that you worked on Pat and I've done some of the things of course was trying to deal with it nationally and so that then gets rather confusing because if you try to use it locally it doesn't highlight what the local options are that's a good point there's something locally one thing we're doing is having a series of essentially one hour seminars or workshops the attorneys come in tomorrow for example which will be a Friday we're having a workshop at 2 o'clock and 3 o'clock and 4 o'clock in the federal building in Birmingham we'll have them scheduled over the next several months at various times in the various divisional courthouses to work on it it will take long an hour or so it gives you a pretty good feel for it but it takes some work to make it work well I want to thank you both of you for taking time from your busy schedule to help the center put this tape together I hope that you will find it helpful and thank you for joining us, goodbye