Disclosures

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 129-154

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Determine aPPlicability of Disclosure requirements task 19

CHAPTER 4: DISCLOSURES

TASKS

Task 19 Determine Applicability of Disclosure

Requirements

Task 20 Set Up Initial Meeting

Task 21 Prepare for Initial Meeting

Task 22 Prepare FRCP 26 Discovery Plan

Task 23 Make Initial Disclosures

Task 24 Limit Initial Disclosures

Task 25 Attend FRCP 16 Scheduling Conference

Task 26 Make Pre-Trial Disclosures

Task 27 Object to Pre-Trial Disclosures

Task 28 Supplement Disclosures

Task 29 Determine Whether to Compel Disclosures

FORMS

Form 6 FRCP 26(f) Discovery Plan (Based on Official

Form 35)

Form 7 Initial Disclosure

TASK 19

Determine Applicability of

Disclosure Requirements

I. WHAT AND WHY

A.The FRCP that relate to disclosures are:

1. 26(a)(1): Initial disclosure of witnesses and

documents at outset of case (see Task 23).

2. 26(a)(2): Expert information (see Task 73).

3. 26(a)(3): Pre-trial disclosure of witnesses and

documents to be used at trial (see Task 26).

4. 26(a)(4): Form and filing of disclosures.

5. 26(d): Stay of discovery until FRCP 26(f) ini-

tial meeting (see Tasks 20-22).

6. 26(f): Initial meeting to prepare joint discov-

ery plan and discuss initial disclosures (see

Tasks 20-22).

B. Certain provisions of FRCP 26 may be changed or

rejected by local rule, court order or, in some cases,

party stipulation. However, the 2000 amendments to

the FRCP substantially limited the District Courts’

ability to opt out of Rule 26 requirements entirely.

1. The following rules may be changed by stipu-

lation of the parties or case-specific court

order, but the District Court may not opt out:

a. FRCP 26(a)(1) as to timing of disclosures.

b. FRCP 26(d).

2. The following rules may be changed by case-

specific court order, but not by stipulation of the

parties, and the District Court may not opt out:

a. FRCP 26(a)(1) as to disclosure requirements.

b. FRCP 26(f).

3. A local rule, court order or stipulation which

changes a provision of FRCP 26 governs.

See FRCP 26(a)(1). However, if a local rule,

court order or stipulation rejects a provision

of FRCP 26, the FRCP in effect prior to the

1993 amendments governs. Review FRCP 29

regarding stipulations modifying discovery

procedures generally.

C. The following categories of proceedings are

exempt from the initial disclosure requirements:

1. Actions for review on an administrative record.

2. Petitions for habeas corpus or other proceed-

ings to challenge a criminal conviction.

3. Pro per actions brought by prisoners.

4. Actions to enforce or quash an administrative

subpoena.

5. Actions by the United States to recover benefit

payments.

6. Actions by the United States to collect a stu-

dent loan.

7. Proceedings ancillary to that in another court.

8. An action to enforce an arbitration award.

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task 20 Disclosures

II. WHEN

A. Review the FRCP, local rules, general orders

and standing orders before you consider filing or

defending a federal action. As soon as you learn

you may be involved in federal litigation, deter-

mine whether the FRCP 26 disclosure require-

ments apply to your case.

B. Review the disclosure requirements periodically

throughout the case to familiarize yourself with

them and to consider whether to seek to “stipulate

around” them.

C. Review Form 1 for a timeline of the disclosure

requirements under FRCP 26.

III. HOW

A. Review FRCP 26.

B. Review your district’s local rules and general

orders to determine whether your district opted out

of any provision of FRCP 26.

C. Consult the assigned judge’s standing orders to

determine whether the judge’s cases are exempt

from any provision of FRCP 26.

1. Obtain standing orders from the judge’s court-

room deputy or court clerk. Call or write a let-

ter requesting copies.

2. Some judges give these orders to plaintiffs

upon filing the complaint and require plaintiffs

to serve them on defendants with the summons

and complaint.

D. Determine whether you should try to change the

provisions of FRCP 26(a)(1) (initial disclosures),

26(a)(2) (expert disclosures) or 26(d) (initial stay

of discovery). Consider:

1. How will discovery differ under the respective

rules? Will you have to disclose more evidence

under the mandatory disclosure rules than

under discovery requests your adversary will

likely serve?

2. Will you benefit from the mandatory disclo-

sure rules by obtaining discovery without serv-

ing requests? You may save your client money

by not having to propound certain discovery.

3. Is it in your best interest to exchange basic dis-

covery early in the case? Generally, if discover-

able documents and other evidence are in your

possession or control, avoid initial disclosures.

Conversely, if most evidence is under your

adversary’s control, keep the disclosure require-

ments in force.

4. Will an initial discovery stay (except disclo-

sures required by FRCP 26(a)(1)) be to your

advantage?

E. To change these provisions, ask opposing counsel

to stipulate. If counsel agrees:

1. Draft a stipulation setting forth the rules and

the agreed changes. Be as detailed as possible

to avoid any later misunderstandings.

2. Obtain signatures from all counsel and file the

stipulation with the court.

F. If counsel will not stipulate or if you wish to

change or reject rules that only the court may

change, consider moving for a FRCP 26(c)

protective order. See Task 84. In your motion,

explain why the rules should not apply to your

case, such as:

1. The case is in expedited proceedings for injunc-

tive or other preliminary relief and an initial dis-

covery stay will be counterproductive.

2. The parties will pursue mediation or arbitration

and, therefore, do not want to spend the time

or money to make initial disclosures or draft a

joint discovery plan.

3. The case is near settlement and the parties do

not need to spend the time or money making

expert disclosures.

IV. PRACTICE NOTE

A. Many districts have opted out of the 1993 amend-

ments to the FRCP but have local rules and EDR

Plans with similar requirements. The 2000 amend-

ments to the FRCP substantially limited the District

Courts’ ability to opt out of the Rule 26 disclosure

requirements entirely. Stipulations and orders altering

or opting out of the requirements in a specific case

may still be entered in some instances.

B. Even if your district has opted out of FRCP 26,

consider asking the assigned judge to order any

disclosures that will be to your advantage.

TASK 20

Set Up Initial Meeting

I. WHAT AND WHY

A. Under FRCP 26(f), counsel for all parties that

have appeared in the case (by filing a pleading

or motion) or the parties themselves, if not repre-

sented, must meet, by telephone or in person, to

discuss case and discovery management issues.