in the two proposals. Indeed, several pieces in the surveyed literature contain descriptions by district court judges of the 46 procedures they follow in holding just such conferences. What the proposals add to the current rules is first, a singling out of pretrial discovery conferences which serves to underline a concern that discovery be handled in an expeditious orderly fashion. Second, and more important, while the present rules give the trial judge the discretion to hold pretrial discovery conferences, these proposals mandate the holding of such a conference at the request of any party who has unsuccessfully but in good faith attempted to resolve his discovery problems out of court. The proposals in effect allow a party, who at a relatively early stage of the litigation is unable to resolve discovery matters with his adversary, to "force" judicial activity without seeking either a sanction or a protective order.

Rule 26(b) (2):

Insurance Agreements

Pursuant to a

1970 amendment, Rule 26 (b) (2) provides that the existence and contents of liability insurance policies are discoverable. According to the Advisory Committee Notes accompanying the amendment, "[d]isclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation."

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Prior to the 1970 amendment, litigation and commentary

abounded on the issue of the discoverability of insurance

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policies. However, since 1970 there has been relatively little

discussion of the issue in the literature and even less in the

way of criticism of the current rule.

One post-1969 piece, however, that does directly and

stridently attack the 1970 amendment appears in the July, 1970

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issue of the Insurance Counsel Journal. There Michael A. Coccia,

a member of the Chicago law firm of Baker and McKenzie, sets forth the position of the International Association of

Insurance Counsel (I.A.I.C.) on the just-adopted 1970 amendments. With respect to the 26 (b) (2) amendment, Coccia contends that the discovery of insurance policies as a general matter would not narrow the issues at trial nor would it be helpful in developing evidence for trial; therefore, he argues, such discovery

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"should not be allowed. Coccia reports that the experience of "many of the [I.A.I.C.'s] members" led them to believe that "in most instances when a plaintiff and his attorney know that high policy limits are available, a new wave of enthusiasm takes over with the evident hope that some way, somehow, they 51 may realize the rainbow's end."

A 1970 piece by Peter A. Davis, an Ann Arbor, Michigan

lawyer, criticizes Rule 26 (b) (2) in a more tentative, less direct

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fashion. In comparing the federal approach to that of Michigan

state courts, which at least at that time, severely limited

the discovery of liability insurance policies, Davis finds

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the federal approach preferable. However, he also presents

an alternative which would allow courts to make a case-bycase determination as to whether discovery would be allowed. His suggested criteria for making this determination include factors such as a) relevance of the policy limits to issues presented by the pleadings, b) the appearance of uncollectability on the part of the defendant, and c) whether liability has been admitted or established as a matter of law. In contrasting this alternative to Rule 26 (b) (2)'s blanket allowance of discovery, Davis, while opting for his approach, concedes that the federal approach is "acceptable" and

admits that his case-by-case proposal could impose substantial burdens on both court and litigant. His preference for the

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case-by-case approach seems at best marginal.

Rule 26 (b) (2) might have been criticized as too limited rather than as too expansive. As the Advisory Committee's Notes to the 1970 amendment indicate, it does not extend

discoverability to non-insurance aspects of a defendant's

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financial status. However, the post-1969 literature reflects no widespread outcry that the scope of 26 (b) (2) be so extended. The only piece surveyed advocating such an extension is an article by two lawyers appearing in a 1970 issue of the

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Hawaii Bar Journal. The article argues that "[i]t would appear

logical that if knowledge of insurance contributes to a

realistic appraisal of a particular case, so might discovery

of the general financial status of a defendant with no

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insurance and no known assets." Acknowledging that the

reluctance of the Advisory Committee to make a defendant's

financial status discoverable stemmed from concerns for

privacy, the authors suggest that those concerns would best
have been accommodated by "reference to protective orders
[under Rule 26 (c)] for undue harassment,

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rather than by

restricting applicability of the Rule." It may be, though,

that Rule 26(c), with its implicit grant of broad discretion to trial judges to act or not act, would, standing alone, be an inadequate guarantee that privacy interests would be

appropriately protected.

If the surveyed literature is any indication, then, there is no widespread dissatisfaction with Rule 26(b)(2). The position of the insurance industry was considered in the deliberations of the Advisory Committee before the rule's

adoption, as was the argument that litigants' entire financial

status should be discoverable.

Nothing in the post-1969

26(b)(2)

literature suggests that 26 (b) (2) should be the subject of

extensive reconsideration at this time.

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Rule 26 (b)(3): Trial Preparation;

Materials

Representing

an effort to deal with the "work product" issue, Rule 26 (b) (3) was added to the rules in 1970. It allows a party to obtain discovery prepared in anticipation of

of "documents and tangible things litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials

by other means. It further provides that "in ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."

The post-1969 literature contains substantial critical commentary on Rule 26 (b) (3). Rather than attacking the fundamental rationales behind the rule, the commentary, by and large, points to perceived vagueness and gaps in the language of the provision.

these problems will be dealt with in turn.

Each of