[House Report 108-684]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-684
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PROVIDING FOR CONSIDERATION OF H.R. 4571, LAWSUIT ABUSE REDUCTION ACT
OF 2004
_______
September 13, 2004.--Referred to the House Calendar and ordered to be
printed
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Mr. Sessions, from the Committee on Rules, submitted the following
R E P O R T
[To accompany H. Res. 766]
The Committee on Rules, having had under consideration
House Resolution 766, by a nonrecord vote, report the same to
the House with the recommendation that the resolution be
adopted.
SUMMARY OF PROVISIONS OF THE RESOLUTION
The resolution provides for the consideration of H.R. 4571,
the Lawsuit Abuse Reduction Act of 2004, under a modified
closed rule. The rule provides one hour of debate in the House
equally divided and controlled by the chairman and ranking
minority member of the Committee on the Judiciary.
The rule waives all points of order against consideration
of the bill. The rule provides that the bill shall be
considered as read for amendment. The rule further provides
that the amendment in the nature of a substitute recommended by
the Committee on the Judiciary now printed in the bill shall be
considered as adopted.
The rule makes in order the amendment printed in this
report, if offered by Representative Turner of Texas or his
designee, which shall be considered as read, and which shall be
debatable for 40 minutes equally divided and controlled by the
proponent and an opponent. The rule waives all points of order
against the amendment printed in this report.
Finally, the rule provides one motion to recommit with or
without instructions.
SUMMARY OF AMENDMENT MADE IN ORDER
(Summary derived from information provided by the amendment
sponsor.)
1. Turner (TX): Amendment in the Nature of a Substitute.
Section 1. Sanctions for Frivolous Pleading--Imposes mandatory
sanctions on frivolous pleadings (first violation--required
payment of costs and attorneys fees; second violation--adds
that the attorney is held in contempt and monetary fine; third
violation--adds referral to state bar for disciplinary
proceedings).
Section 2. Sanctions for Frivolous Conduct During
Discovery--Imposes mandatory sanctions on discovery violations
(first violation--required payment of costs and attorneys fees;
second violation--adds that the attorney is held in contempt
and monetary fine; third violation--adds referral to state bar
for disciplinary proceedings).
Section 3. Ban on Frivolous Concealment of Unlawful
Conduct--Limits the ability of corporate wrongdoers to conceal
any conduct harmful to public welfare by requiring that court
records may not be sealed unless the court first finds that
such sealing is justified.
Section 4. Enhanced Sanctions for Document Destruction--
Provides that parties which destroy documents in connection
with civil proceedings shall be punished with mandatory civil
sanctions, held in contempt of court, and referred to state bar
for disciplinary proceedings.
Section 5. Expelled Disposition of Frivolous and other
Lawsuits in State Courts--Imposes the Civil Justice Reform Act,
which has proved successful in federal courts, to the state
courts in order to speed up the pretrial process and weed out
junk lawsuits. (40 minutes).
TEXT OF AMENDMENT MADE IN ORDER
Strike all after the enacting clause and insert the
following:
SECTION 1. ``THREE STRIKES AND YOU'RE OUT'' FOR FRIVOLOUS PLEADINGS.
(a) Signature Required.--Every pleading, written motion, and
other paper in any action shall be signed by at least 1
attorney of record in the attorney's individual name, or, if
the party is not represented by an attorney, shall be signed by
the party. Each paper shall state the signer's address and
telephone number, if any. An unsigned paper shall be stricken
unless omission of the signature is corrected promptly after
being called to the attention of the attorney or party.
(b) Certificate of Merit.--By presenting to the court
(whether by signing, filing, submitting, or later advocating) a
pleading, written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of the
person's knowledge, information and belief, formed after an
inquiry reasonable under the circumstances--
(1) it is not being presented for any improper
purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a non
frivolous argument for the extension, modification, or
reversal of existing law or the establishment of new
law; and
(3) the allegations and other factual contentions
have evidentiary support or, if specifically so
identified, are reasonable based on a lack of
information or belief.
(c) Mandatory Sanctions.--
(1) First violation.--If, after notice and a
reasonable opportunity to respond, a court, upon motion
or upon its own initiative, determines that subsection
(b) has been violated, the court shall find each
attorney or party in violation in contempt of court and
shall require the payment of costs and attorneys fees.
The court may also impose additional appropriate
sanctions, such as striking the pleadings, dismissing
the suit, and sanctions plus interest, upon the person
in violation, or upon both such person and such
person's attorney or client (as the case may be).
(2) Second violation.--If, after notice and a
reasonable opportunity to respond, a court, upon motion
or upon its own initiative, determines that subsection
(b) has been violated and that the attorney or party
with respect to which the determination was made has
committed one previous violation of subsection (b)
before this or any other court, the court shall find
each such attorney or party in contempt of court and
shall require the payment of costs and attorneys fees,
and require such person in violation (or both such
person and such person's attorney or client (as the
case may be)) to pay a monetary fine. The court may
also impose additional appropriate sanctions, such as
striking the pleadings, dismissing the suit and
sanctions plus interest, upon such person in violation,
or upon both such person and such person's attorney or
client (as the case may be).
(3) Third and subsequent violations.--If, after
notice and a reasonable opportunity to respond, a
court, upon motion or upon its own initiative,
determines that subsection (b) has been violated and
that the attorney or party with respect to which the
determination was made has committed more than one
previous violation of subsection (b) before this or any
other court, the court shall find each such attorney or
party in contempt of court, refer each such attorney to
one or more appropriate State bar associations for
disciplinary proceedings, require the payment of costs
and attorneys fees, and require such person in
violation (or both such person and such person's
attorney, or client (as the case may be)) to pay a
monetary fine. The court may also impose additional
appropriate sanctions, such as striking the pleadings,
dismissing the suit, and sanctions plus interest, upon
such person in violation, or upon both such person and
such person's attorney or client (as the case may be).
(4) Appeal; stay.--An attorney has the right to
appeal a sanction under this subsection. While such an
appeal is pending, the sanction shall be stayed.
(5) Not applicable to civil rights claims.--
Notwithstanding subsection (d), this subsection does
not apply to an action or claim arising out of Federal,
State, or local civil rights law or any other Federal,
State, or local law providing protection from
discrimination.
(d) Applicability.--Except as provided in subsection (c)(5),
this section applies to any paper filed on or after the date of
the enactment of this Act in--
(1) any action in Federal court; and
(2) any action in State court, if the court, upon
motion or upon its own initiative, determines that the
action affects interstate commerce.
SEC. 2. ``THREE STRIKES AND YOU'RE OUT'' FOR FRIVOLOUS CONDUCT DURING
DISCOVERY.
(a) Signatures Required on Disclosures.--Every disclosure
made pursuant to subdivision (a)(1) or subdivision (a)(3) of
Rule 26 of the Federal Rules of Civil Procedure or any
comparable State rule shall be signed by at least one attorney
of record in the attorney's individual name, whose address
shall be stated. An unrepresented party shall sign the
disclosure and state the party's address. The signature of the
attorney or party constitutes a certification that to the best
of the signer's knowledge, information, and belief, formed
after a reasonable inquiry, the disclosure is complete and
correct as of the time it is made.
(b) Signatures Required on Discovery.--
(1) In general.--Every discovery request, response,
or objection made by a party represented by an attorney
shall be signed by at least one attorney of record in
the attorney's individual name, whose address shall be
stated. An unrepresented party shall sign the request,
response, or objection and state the party's address.
The signature of the attorney or party constitutes a
certification that to the best of the signer's
knowledge, information, and belief, formed after a
reasonable inquiry, the request, response, or objection
is:
(A) consistent with the applicable rules of
civil procedure and warranted by existing law
or a good faith argument for the extension,
modification, or reversal of existing law;
(B) not interposed for any improper purpose,
such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation;
and
(C) not unreasonable or unduly burdensome or
expensive, given the needs of the case, the
discovery already had in the case, the amount
in controversy, and the importance of the
issues at stake in the litigation.
(2) Stricken.--If a request, response, or objection
is not signed, it shall be stricken unless it is signed
promptly after the omission is called to the attention
of the party making the request, response, or
objection, and a party shall not be obligated to take
any action with respect to it until it is signed.
(c) Mandatory Sanctions.--
(1) First violation.--If without substantial
justification a certification is made in violation of
this section, the court, upon motion or upon its own
initiative, shall find each attorney or party in
contempt of court and shall require the payment of
costs and attorneys fees. The court may also impose
additional sanctions, such as imposing sanctions plus
interest or imposing a fine upon the person in
violation, or upon such person and such person's
attorney or client (as the case may be).
(2) Second violation.--If without substantial
justification a certification is made in violation of
this section and that the attorney or party with
respect to which the determination is made has
committed one previous violation of this section before
this or any other court, the court, upon motion or upon
its own initiative, shall find each attorney or party
in contempt of court and shall require the payment of
costs and attorneys fees, and require such person in
violation (or both such person and such person's
attorney or client (as the case may be)) to pay a
monetary fine. The court may also impose additional
sanctions upon such person in violation, or upon both
such person and such person's attorney or client (as
the case may be).
(3) Third and subsequent violations.--If without
substantial justification a certification is made in
violation of this section and that the attorney or
party with respect to which the determination is made
has committed more than one previous violation of this
section before this or any other court, the court, upon
motion or upon its own initiative, shall find each
attorney or party in contempt of court, shall require
the payment of costs and attorneys fees, require such
person in violation (or both such person and such
person's attorney or client (as the case may be)) to
pay a monetary fine, and refer such attorney to one or
more appropriate State bar associations for
disciplinary proceedings. The court may also impose
additional sanctions upon such person in violation, or
upon both such person and such person's attorney or
client (as the case may be).
(4) Appeal; stay.--An attorney has the right to
appeal a sanction under this subsection. While such an
appeal is pending, the sanction shall be stayed.
(d) Applicability.--This section applies to any paper filed
on or after the date of the enactment of this Act in--
(1) any action in Federal court; and
(2) any action in State court, if the court, upon
motion or upon its own initiative, determines that the
action affects interstate commerce.
SEC. 3. BAN ON CONCEALMENT OF UNLAWFUL CONDUCT.
(a) In General.--A court may not order that a court record be
sealed or subjected to a protective order, or that access to
that record be otherwise restricted, unless the court makes a
finding of fact in writing that identifies the interest that
justifies the order and that determines that the order is no
broader than necessary to protect that interest.
(b) Applicability.--This section applies to any court record,
including a record obtained through discovery, whether or not
formally filed with the court.
SEC. 4. ENHANCED SANCTIONS FOR DOCUMENT DESTRUCTION.
(a) In General.--Whoever influences, obstructs, or impedes,
or endeavors to influence, obstruct, or impede, a pending court
proceeding through the intentional destruction of documents
sought in, and highly relevant to, that proceeding--
(1) shall be punished with mandatory civil sanctions
of a degree commensurate with the civil sanctions
available under Rule 37 of the Federal Rules of Civil
Procedure, in addition to any other civil sanctions
that otherwise apply; and
(2) shall be held in contempt of court and, if an
attorney, referred to one or more appropriate State bar
associations for disciplinary proceedings.
(b) Applicability.--This section applies to any court
proceeding in any Federal or State court.
SEC. 5. EXPEDITED DISPOSITION OF FRIVOLOUS AND OTHER LAWSUITS.
(a) In General.--For each State, each judicial district in
the State shall, within 2 years of the date of the enactment of
this Act, develop and implement a civil justice expense and
delay reduction plan and submit it to the appropriate governing
body of the State. The governing body shall make the plan
available to the public.
(b) Principles.--Each plan required by subsection (a) shall
apply to actions in State court that affect interstate commerce
and any other actions that the governing body considers
appropriate. The plan shall be developed and implemented with
regard to the following principles:
(1) Systematic, differential treatment of civil cases
that tailors the level of individualized and case
specific management to such criteria as case
complexity, the amount of time reasonably needed to
prepare the case for trial, and the judicial and other
resources required and available for the preparation
and disposition of the case.
(2) Early and ongoing control of the pretrial process
through involvement of a judicial officer in--
(A) assessing and planning the progress of a
case;
(B) setting early, firm trial dates, such
that the trial is scheduled to occur within
eighteen months after the filing of the
complaint, unless a judicial officer certifies
that--
(i) the demands of the case and its
complexity make such a trial date
incompatible with serving the ends of
justice; or
(ii) the trial cannot reasonably be
held within such time because of the
complexity of the case or the number or
complexity of pending criminal cases;
(C) controlling the extent of discovery and
the time for completion of discovery, and
ensuring compliance with appropriate requested
discovery in a timely fashion; and
(D) setting, at the earliest practicable
time, deadlines for filing motions and a time
framework for their disposition.
(3) For all cases that the court or an individual
judicial officer determines are complex and any other
appropriate cases, careful and deliberate monitoring
through a discovery-case management conference or a
series of such conferences at which the presiding
judicial officer--
(A) explores the parties' receptivity to, and
the propriety of, settlement or proceeding with
the litigation;
(B) identifies or formulates the principal
issues in contention and, in appropriate cases,
provides for the staged resolution or
bifurcation of issues for trial consistent with
Rule 42(b) of the Federal Rules of Civil
Procedure;
(C) prepares a discovery schedule and plan
consistent with any presumptive time limits
that a district court may set for the
completion of discovery and with any procedures
a district court may develop to--
(i) identify and limit the volume of
discovery available to avoid
unnecessary or unduly burdensome or
expensive discovery; and
(ii) phase discovery into two or more
stages; and
(D) sets, at the earliest practicable time,
deadlines for filing motions and a time
framework for their disposition.
(4) Encouragement of cost-effective discovery through
voluntary exchange of information among litigants and
their attorneys and through the use of cooperative
discovery devices.
(5) Conservation of judicial resources by prohibiting
the consideration of discovery motions unless
accompanied by a certification that the moving party
has made a reasonable and good faith effort to reach
agreement with opposing counsel on the matters set
forth in the motion.
(6) Authorization to refer appropriate cases to
alternative dispute resolution programs that--
(A) have been designated for use in a
district court; or
(B) the court may make available, including
mediation, minitrial, and summary jury trial.
(c) Techniques.--In developing the plan required by
subsection (a), a judicial district shall consider and may
include the following techniques:
(1) A requirement that counsel for each party to a
case jointly present a discovery-case management plan
for the case at the initial pretrial conference, or
explain the reasons for their failure to do so.
(2) A requirement that each party be represented at
each pretrial conference by an attorney who has the
authority to bind that party regarding all matters
previously identified by the court for discussion at
the conference and all reasonably related matters.
(3) A requirement that all requests for extensions of
deadlines for completion of discovery or for
postponement of the trial be signed by the attorney and
the party making the request.
(4) A neutral evaluation program for the presentation
of the legal and factual basis of a case to a neutral
court representative selected by the court at a
nonbinding conference conducted early in the
litigation.
(5) A requirement that, upon notice by the court,
representatives of the parties with authority to bind
them in settlement discussions be present or available
by telephone during any settlement conference.
(6) Such other features as the judicial district
considers appropriate.