§33.4 Comparison with Federal Rule

• Jurisdiction: Washington

§33.4COMPARISON WITH FEDERAL RULE

In federal court, discovery is limited by definition and is subject to affirmative disclosure obligations. Absent court order or stipulation, interrogatories are limited to 25 in number (including discrete subparts). SeeFed. R. Civ. P. 33(a)(1). CR 33 does not provide any limits as to the number of interrogatories that are available to a party. Local court rules, however, may impose limits. See §33.4(3), below.

(1)Interrogatories cannot be issued until after the initial discovery conference

FED.R.CIV. P. 26(f) requires the parties and/or counsel to participate in an initial discovery conference. Limited types of cases are exempt from this requirement. No discovery under FED.R.CIV. P. 30,33,34,35, or 36 is allowed before the discovery conference has been completed, unless permitted by stipulation or court order. FED.R.CIV. P. 26(d). In limited circumstances, the deposition of a witness who will be unavailable in the United States for later examination may be conducted before the initial discovery conference. This requires certification from counsel that the witness will be unavailable. FED.R.CIV. P. 30(a)(2).

The discovery conference needs to convene as soon as practicable, and at least 21 days before any scheduling conference set by the court. At the discovery conference, the parties and counsel are to meet and confer regarding (1) claims and defenses; (2) prospects of early settlement or resolution; (3) making or arranging for the initial disclosures required under Fed. R. Civ. P. 26(a)( 1); (4) any issues about preserving discoverable information; and (5) developing a proposed discovery plan. Fed. R. Civ. P. 26(f)(2). A written report outlining the discovery plan must be submitted to the court within 14 days after the discovery conference. The rule suggests that the conference can be conducted by telephone, but the court can order an in-person conference.

A party can defer the initial discovery disclosures required under CR 26(a)(1), even if a stipulation to delay the disclosures is not reached with opposing counsel. Under the rule, a party has no obligation to provide the initial discovery disclosures if it objects to those disclosures during the CR 26(f) discovery conference. As long as the objections appear in writing in the CR 26(f) discovery plan submitted after the conference, a party has no duty to disclose information until the court rules on the objections.

(2)Initial discovery disclosures

The initial discovery disclosures now required in federal practice under Fed. R. Civ. P. 26(a)(1) will limit the scope and reduce the need for a party to use interrogatories as a discovery device. In the absence of a stipulation by the parties or order of the court, a corresponding limitation does not exist in Washington state practice.

(a)Overview

The initial disclosure requirement under Fed. R. Civ. P. 26(a)( 1) applies to information that a party "may use to support its claims or defenses, unless the use would be solely for impeachment." The key word here is "use": the information to be disclosed is that which a party "may use to support its claims or defenses." The advisory committee's note to the 2000 amendments to Fed. R. Civ. P. 26 defines the term "use" as follows:

"Use" includes any use at a pretrial conference, to support a motion, or at trial. The disclosure obligation is also triggered by intended use in discovery, apart from use to respond to a discovery request; use of a document to question a witness during a deposition is a common example. The disclosure obligation attaches both to witnesses and documents a party intends to use and also to witnesses and to documents the party intends to use if—in the language of Rule 26(a)(3)—"the need arises."

FED.R.CIV. P. 26, Committee Notes on Rules—2000 Amendment, Subdivision (a)(1). A party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use.

On its face, Fed. R. Civ. P. 26(a)(1) would appear to impose greater burdens upon plaintiffs than defendants. This is simply not the case. Because the initial disclosures must include any witnesses or documents a party will use for purposes of any defenses, both parties are equally required to disclose information they may use to support any denials or rebuttal of the allegations, claims, or defenses of another party. The disclosure obligation is intended to force parties to narrow the issues to those that are actually in dispute. The advisory committee's note states that the rule change bolsters the requirement of Fed. R. Civ. P. 11(b)(4), which requires that any denials be "warranted on the evidence." Fed. R. Civ. P. 26, Committee Notes on Rules—2000 Amendment, Subdivision (a)(1). The evidence warranting a denial must be disclosed.

The disclosure requirements do not apply to any documents or witnesses that will be used solely for impeachment. Attorneys must exercise caution in withholding disclosure of information that may be used for impeachment. Documents and testimony are often offered for dual purposes, namely, both as substantive evidence and for impeachment purposes, and a party may lose the right to use certain evidence for either purpose if not properly disclosed. Fed. R. Civ. P. 37(c)(1) provides an automatic sanction to exclude information that was not properly disclosed.

(b)The initial disclosure requirements will narrow the scope of interrogatories propounded by a party

The initial disclosures must be in writing, signed, and served on the opposing party and its counsel. When signing the initial disclosures, Fed. R. Civ. P. 11 and Fed. R. Civ. P. 26(g) apply. Generally, absent stipulation or court order, the initial disclosures are due within 14 days after the parties'initial discovery conference required under Fed. R. Civ. P. 26(f). A party is not excused from making these initial disclosures because it has not completed its investigation, or because the other party's disclosures are insufficient or have not been provided. Fed. R. Civ. P. 26(a)(1)(E). Except in limited types of cases that are exempt from the rules, the parties must provide the following disclosures without the need for a formal discovery request:

(1)The name, address, and telephone number of any person likely having knowledge of any discoverable matter that the party may use to support any claim or defense, with a description of the subjects or information known by each person. (This does not apply to persons having knowledge pertaining to impeachment only.) Fed. R. Civ. P. 26(a)(1)(A)(i).

(2)Either actual copies or a detailed description of any documents, electronically stored information, or tangible materials in the party's possession, custody, or control that may be used to support any claim or defense (excluding materials that pertain to impeachment only). Because this requirement includes any materials in a party's "custody or control," there is an obligation to obtain or identify materials in the possession of third parties, for example, a party's accountant, medical provider, or banker. Fed. R. Civ. P. 26(a)(1)(A)(ii).

(3)Adamage computation by category. Aparty must also make available or otherwise identify any materials supporting the claim of damages that are not otherwise subject to a claim of privilege or discovery immunity, such as medical bills or invoices if a claim for personal injury has been made. Fed. R. Civ. P. 26(a)(1)(A)(iii).

(4)Aparty must also make available or produce any insurance documents that may satisfy, in...