Disclosures

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 159-190

HANDLING FEDERAL DISCOVERY

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) initial meeting (but early requests allowed in some instances)

(see Tasks 20-22).

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

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TASK 19 DISCLOSURES

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1. The following rules may be changed by stipulation 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 proceedings 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 student loan.

7. Proceedings ancillary to that in another court.

8. An action to enforce an arbitration award.

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, determine whether the FRCP

26 disclosure requirements 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 courtroom deputy or court clerk. Call or write a letter 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?

SET UP INITIAL MEETING TASK 20

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2. Will you benefit from the mandatory disclosure rules by obtaining discovery without serving requests?

You may save your client money by not having to propound certain discovery.

3. Is it in your best interest to exchange basic discovery early in the case? Generally, if discoverable

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 requirements in force.

4. Will an initial discovery stay (except disclosures 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 injunctive or other preliminary relief and an initial discovery

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 amendments to the FRCP but have local rules and EDR Plans with

similar requirements. The 2000 amendments 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 represented, must meet, by telephone or in person, to discuss case and

discovery management issues.

1. Rule 26 does not require additional meetings with later joined parties and/or their counsel. Steppes

Apartment, Ltd. v. Armstrong, 188 F.R.D. 642 (D. Utah 1999).

B. The purpose of the meeting is to:

1. Discuss the claims and defenses to assist the parties and court develop an appropriate discovery plan.

See FRCP 26(f), Adv. Comm. Notes (1993).

2. Discuss settlement possibilities.

3. Discuss the scope and schedule of the initial disclosures. See Task 23.