(343) The discretion is located in CPLR section 5240, which federal courts have access via FRCP 69.
Where purely federal law applies--that is, FRCP 69 does not apply--there is no separate branch rule.
Tarrant County Narcotics Intelligence and Coordination Unit(17) as prohibiting the imposition of heightened pleading in environmental cases,(18) I concomitantly contended that the major 1993 revision of FRCP 11(19) should limit the incentives to employ the stricture, thereby generally reducing reliance on the rule, specifically in environmental litigation.(20)
Practically every court has rejected these litigants' requests to impose elevated pleading requirements.(21) Moreover, formal invocation of FRCP 11 has been relatively limited in environmental lawsuits, as it has in most other forms of litigation.(22) However, it is difficult to determine conclusively whether reliance on the sanctions stricture, particularly through informal invocation, has in fact substantially decreased.
In 1995 I evaluated whether the 1993 revision of FRCP 26(a)(1),23 which prescribed automatic or mandatory prediscovery and disclosure, would effectively impose stringent pleading in environmental cases.(24) The 1993 amendment mandates that parties, prior to beginning formal discovery, reveal information that is "relevant to disputed facts alleged with particularity in the pleadings."(25) Litigants and judges might have interpreted this language to require elevated pleading because plaintiffs who filed very specific complaints would have been able to claim that they were entitled to considerably more material.
A suggestion to narrow the scope of discovery allowed in FRCP 34(b)(32) might be of interest to these parties and lawyers.
Oakley, supra note 19, at 355 (finding, in a 2002 survey of state procedural following in the wake of FRCP
amendments made between 1990 and 1993, that state rulemakers were less and less likely to adopt state analogues to federal rule amendments).