189.

190.

191.

Comment, Sanctions Imposed by Courts on Attorneys Who
Abuse the Judicial Process, 44 U. Chi. L. Rev. 619
(1977).

Id. at 623. Another student piece pointing to the
potential of 28 U.S.C. § 1927 as an enforcement
vehicle is Werner, Survey of Discovery Sanctions, 36-38
(1978) (unpublished paper on file at the University of
Pennsylvania Law School).

Advisory Committee Report 35. The analogous language
in the A.B.A. Special Committee Report is virtually
identical. A.B.A. Special Committee Report 23.

195.

196.

See pages 9-10 supra.

See, e.g., Pound Conference, 70 F.R.D. at 203 (remarks
of Francis R. Kirkham); Symposium, Discovery in
Antitrust Civil Suits, 44 Antitrust L. J. 1, 4 (1975)
(remarks of Seymour Kurland).

See, e.g., Transcript of Remarks Made at the 1977
Second Circuit Judicial Conference 107-112 (remarks of
Robert Meserve) (on file at the University of Pennsylvania
Law School); Liman, The Quantum of Discovery vs. The
Quality of Justice: More is Less, 4 Litigation 8, 9 (Fall,
1977); Withrow and Larm, The "Big" Antitrust Case:
25 Years of Sisyphean Labor, 62 Cornell L. Rev. 1, 26
(1975).

197. While the text of this Report covers Rules 26-37 and Rule 45, the concern with problems of over-discovery has manifested itself in a proposal for revision of Rule 5 as well. In general, Rule 5 requires that all "papers relating to discovery" be not only served on each party but filed with the court as well. See F.R. Civ. P. 5(a), 5(d). Both the A.B.A. Special Committee and the Advisory Committee propose that unless the court orders otherwise, the filing requirement not be triggered until the papers in question are actually used in the proceedings. A.B.A. Special Committee Report 1, Advisory Committee Report 5.

198.

199.

200.

201.

202.

203.

The rationale behind the suggested revisions is
reflected in the Advisory Committee Note to the
Advisory
Committee proposal: "The

cost of providing additional copies of [discovery]
materials for the purpose of filing can be consider-
able, and the volume of discovery materials now
being filed presents serious problems of storage in
the clerk's office in some districts."

Advisory Committee Report 5.

See, e.g., Schwarzer, Managing Civil Litigation:
The Trial Judge's Role, 61 Judicature 400 (1978);
Krupansky, The Federal Rules are Alive and Well,
4 Litigation 10 (Fall, 1977); Withrow and Larm,
The "Big" Antitrust Case: 25 Years of Sisyphean
Labor, 62 Cornell L. Rev. 1, 26-27 (1976).

See pages 20-22 supra.

See, e.g., Schwarzer, Managing Civil Litigation:
The Trial Judge's Role, 61 Judicature 400, 403 (1978);
Symposium, Discovery in Civil Antitrust Suits, 44
Antitrust L. J. 1, 25 (1975) (remarks of Peter Byrnes).

See, e.g., Symposium, Discovery in Civil Antitrust Suits,
44 Antitrust L. J. 1, 25 (1975) (remarks of Peter Byrnes);
Withrow and Larm, The "Big" Antitrust Case: 25 Years of
Sisyphean Labor, 62 Cornell L. Rev. 1, 26 (1976).

See, e.g., the discussion and sources cited at pages
26-29 supra.

See, e.g., the discussion and sources cited at pages
33, 53-54 supra.

204. Fed. R. Civ. P. 1.

APPENDIX A

Rule 5. Service and Filing of Pleadings and Other Papers. (a) SERVICE: WHEN REQUIRED. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise. orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.

(b) SAME: How MADE. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

(c) SAME: NUMEROUS DEFENDANTS. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. (d) FILING. All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter.

(e) FILING WITH THE COURT DEFINED. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.

(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July 1, 1970.)