The drafters of the 1938 Federal Rules of Civil Procedure hoped to establish those rules as a model that the states could adopt, thus fostering national and intrastate procedural uniformity. This objective was not realized generally or by very many specific jurisdictions. Observers of the increasingly fractured procedural regime in the federal arena have voiced concerns about the mounting numbers of strictures, the accelerating pace of procedural change and the growing inconsistency of the requirements imposed. Illustrative are the major 1983 and 1993 federal discovery amendments, which new discovery provisions further revised in December 2000. The Civil Justice Reform Act of 1990 concomitantly encouraged all ninety-four federal districts to prescribe local procedures for reducing expense and delay in civil litigation, and these measures conflicted with the Federal Rules. The fragmentation described above is most clearly manifested in the area of discovery, which is a critical feature of many modem civil lawsuits.
In this increasingly byzantine world of civil procedure, there is one bastion of uniformity: Arizona civil procedure. The Arizona Supreme Court, which has authority for amending the Arizona Rules of Civil Procedure, has steadfastly attempted to maintain consistency between Arizona state civil procedure and the Federal Rules. The Justices' efforts may even suggest that members of the court found it preferable to be uniform rather than right. Indeed, Arizona has occasionally surpassed the federal rule revisors by instituting changes which they had not adopted or had merely proposed. Illustrative is the 1992 imposition of presumptive temporal limitations on depositions, strictures that those responsible for altering the Federal Rules have only recently decided to implement. Another example is Arizona's provision for mandatory pre-discovery disclosure promulgated approximately two years before the federal proviso that required disclosure took effect.
In September 1999, the Judicial Conference of the United States, the policymaking arm of the federal courts, approved a comprehensive package of amendments to the Federal Rules of Civil Procedure governing discovery. The United States Supreme Court promulgated the set of discovery revisions during April 2000 and the amendments became applicable in December 2000 because Congress did not reject or modify the package in the subsequent seven months. This group of federal rules amendments constitutes the fourth substantial change in the federal discovery provisions over the last two decades.
Arizona now confronts a dilemma. The Arizona Supreme Court must decide whether it should continue to honor the longstanding tradition of preserving consistency between the Federal Rules of Civil Procedure and the Arizona Rules of Civil Procedure.This difficulty is complicated because Arizona has recently participated in considerable discovery reform, which differs somewhat from the federal discovery regime. Moreover, the Arizona bench and bar may believe that their discovery system is superior to the existing federal scheme in that it better serves the needs of the Arizona judiciary, lawyers, parties and citizens. Furthermore, the patience of Arizona judges, attorneys and litigants for discovery reform may well have been exhausted. This article analyzes the convergence of federal and Arizona civil discovery regimes and the implications of recent federal discovery amendments.
Section II examines the origins and development of the civil discovery systems of the federal and Arizona trial courts and the important issue of procedural uniformity. It specifically scrutinizes the current situation in the federal sphere and in Arizona with emphasis on the federal provisions that the United States Supreme Court recently prescribed and the reform of Arizona discovery throughout the 1990s. This section concludes that the new federal amendments present a conundrum for Arizona.
Section III of the paper offers suggestions for resolving this dilemma. The Arizona Supreme Court must essentially decide whether it is preferable to be consistent or correct. The determination will require the Justices to undertake a finely-calibrated analysis which involves a complex constellation of relevant factors. The Arizona Supreme Court must consider, for instance, the benefits and disadvantages of uniformity, the efficacy of new federal revisions and recently-instituted modifications in the Arizona discovery regime, and the tolerance of the Arizona bench and bar for additional change in the discovery scheme.
Carl Tobias, A Civil Discovery Dilemma for the Arizona Supreme Court, 34 Ariz. St. L. Rev. 615 (2002)