Article Disclosure Dangers - How to Lose Your Litigation Matter in One Step by Christopher Sanders and Austin Westerberg

• Publication year: 2023
• Pages: 40

Article Disclosure Dangers - How to Lose Your Litigation Matter in One Step by Christopher Sanders and Austin Westerberg Vol. 36 No. 5 Pg. 40 Utah Bar Journal October, 2023

September, 2023

Litigation is changing in Utah. There is a growing emphasis on fortified and detailed disclosures pursuant to Rules 26(a)(1) (Initial Disclosures) and 26(a)(4) (Expert Disclosures) of the Utah Rules of Civil Procedure. Per Rule 26, Initial Disclosures should contain, at minimum: (a) a list of witnesses and individuals with discoverable information regarding claims or defenses and a corresponding description, (b) documentation to support a party's case-in-chief, (c) a computation of damages sought, if any, and (d) information regarding insurance or indemnification agreements. The presumptive remedy for failure to comply with these rules, absent good cause, is exclusion. See Utah R. Civ. P. 26(d)(4).

Initial Disclosures

Historically, some litigators in Utah have done a poor job of attempting to provide the required "computation" of damages, using language such as: "not yet calculated"; "still ascertaining the full extent of damages"; "requires expert testimony"; "in an amount not less than [X]"; or worst of all, no disclosure whatsoever for damages. Such a "computation" of damages, standing alone, is no longer acceptable in Utah courts. The Rule is clear; a party claiming damages must provide "a computation of any damages claimed and a copy of all discoverable documents or evidentiary material on which such computation is based, including materials about the nature and extent of injuries suffered[.]" Utah R. Civ. P. 26(a)(1)(C) (emphases added).

While not the first Utah appellate opinion to reiterate the importance of sufficient disclosures, this growing emphasis is readily apparent in Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, 445 P.3d 434. There, the Utah Supreme Court considered (among other issues) whether to affirm exclusion of evidence of damages for failure to provide an adequate computation of damages in Initial Disclosures.^[1] The plaintiff argued, among other points, in Keystone that its initial disclosure obligations were satisfied because a spreadsheet was produced from which at least part of the damages sought could arguably be calculated by extrapolation. See id. ¶ 22. The court rejected this argument. Keystone distinguished between a spreadsheet that included figures that might aid in computing part of the plaintiff's damages and written disclosures that did not disclose the actual number of damages. The court held that while the spreadsheet at issue might aid in computing damages, it did not constitute a "dispositive and clear recitation of what damages Keystone was after," leaving the defendant to "guesswork" to determine what damages were being sought. Id. ¶ 23; see also Id. ¶ 23 n.10 ("Possessing all of a company's financial data does not obligate defendants to divine what matters to a plaintiff.").

In Vanlaningham v. Ryan Hart & Hart Dental LLC, 2021 UT App 95, 498 P.3d 27, the Utah Court of Appeals considered a similar question: whether to affirm exclusion of evidence of damages at trial for failure to...