Automatic Disclosure and Disuniformity in the Ninth Circuit

The 1993 amendment to Federal Rule of Civil Procedure 26(a)(1) imposes automatic disclosure and is the most controversial formal proposal to revise the Federal Rules ever developed. The provision requires litigants to divulge information that is important to their cases before commencing formal discovery. The amendment also permits all ninety-four federal districts to vary the revision or to reject it completely. Moreover, judges and parties in specific cases may modify any disclosure requirements adopted by the districts. The amendment has remained controversial since it became effective on December 1, 1993. Less than a majority of districts subscribe to the Federal Rule revision, and many of the remaining courts prescribe a broad array of disclosure procedures. These procedures include requirements that are somewhat stricter and considerably less rigorous than the Federal Rule amendment. The applicable strictures, therefore, foster substantial interdistrict court and intrastate disuniformity. Moreover, the disclosure requirements appear in local rules, civil justice expense and delay reduction plans issued under the Civil Justice Reform Act (CJRA) of 1990, district court orders, individual judge procedures, and unwritten informal practices. These considerations complicate federal civil practice because the disclosure strictures are difficult to locate, understand, and satisfy. Furthermore, they vary significantly from district to district and within states. All these factors mean that early implementation of automatic disclosure warrants analysis. This Essay undertakes that effort by emphasizing the process problems raised by disclosure. First, it examines the origins and development of the automatic disclosure mechanism. The Essay then evaluates the effectuation of disclosure, focusing on the disuniform disclosure procedures adopted by the federal district courts and the state and territorial court systems located within the United States Court of Appeals for the Ninth Circuit. This Essay ascertains that disclosure has enhanced interdistrict federal court disuniformity. For example, a mere two of the fifteen districts subscribe to the Federal Rule requirements. Disclosure has also increased intrastate disuniformity. For instance, the federal courts in multi-district states have instituted diverse disclosure regimes. Indeed, each of the four federal districts in California prescribe different disclosure procedures. Alaska and Arizona are the only two of eleven state or territorial court systems that apply disclosure. This Essay next assesses the implications of these findings regarding the implementation of disclosure, and concludes with suggestions for the future