On December 1, 1993, the most comprehensive package of amendments to the Federal Rules of Civil Procedure (Federal Rules) in their half-century history became effective. Although the revisions include a number of changes that are relatively innocuous, modifications in Rule 11 governing sanctions and Rule 26 requiring mandatory pre-discovery or automatic disclosure were and remain controversial. The amendment to Rule 11 altered the 1983 revision of that Rule which had proved to be the most controversial amendment ever developed. The amendment to Rule 26 prescribing automatic disclosure was the most controversial formal proposal changing the Rules in their history. These two modifications, therefore, are quite controversial. Moreover, the Montana Supreme Court adopts nearly all of the Federal Rules amendments soon after the United States Supreme Court promulgates the revisions, and the Montana Advisory Commission on Rules of Civil and Appellate Procedure is currently considering the advisability of recommending the adoption of the 1993 modifications. The changes in Federal Rules 11 and 26, accordingly, warrant analysis to ascertain whether they should apply in the Montana state district court system. This essay undertakes that effort. The paper first briefly examines the developments that led to the 1993 amendments in Federal Rules 11 and 26. The essay then assesses the changes that the United States Supreme Court instituted in Rules 11 and 26 and evaluates whether the Federal Rules amendments should be incorporated into the Montana Rules of Civil Procedure.
Carl Tobias, 1993 Federal Rules Amendments and the Montana Civil Rules, 55 Mont. L. Rev. 415 (1994)