FRCP 26: General Provisions Governing Discovery

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FRCP 26

FRCP 26 are the general provisions governing discovery, which is the process by which parties exchange the information evidence that they intend to present in support of their case. The Federal Rules of Civil Procedure (FRCP) are the governing rules for civil cases brought within the federal courts. This means that when preparing and litigating a civil case in front of a federal judge, you will need to understand and have the Federal Rules of Civil Procedure (FRCP) ready to consult when you have a question about the procedure for a case.

Each of the rules governs a different aspect of the process and has specificity in its application. The rules govern everything from writing the pleadings to begin the case to how to recover a judgment or appeal a case. The Supreme Court regularly consults and applies these rules.

Federal Rules of Civil Procedure (FRCP) 26 deals mainly with the request of discovery evidence. It outlines the requirements for the parties to exchange information and explains how to submit a discovery request to the other party. This article will explore the rules in FRCP 26 and highlight the important aspects to ensure you can obtain discovery and adequately prepare for your case.

FRCP 26: The Outline for Discovery

Rule 26 outlines the discovery process, particularly the initial disclosures that each party must make and how a party may request additional disclosures. The process is broken into several main categories: required disclosures, the scope and limit of disclosures, orders protecting information from disclosure, the timing, supplemental information, how the parties should exchange discovery, and discovery requests. Each of these sections will be considered in turn.

Required Disclosures

Rule 26 begins with a list of requirements for the initial disclosure that each party must provide to the other party or parties. The law requires that this information be turned over unless protected in other ways to ensure fairness and eliminate a party gaming the system to avoid handing over important evidence. The parties are required to disclose the following without waiting for a discovery request or order.

Witnesses

Parties are required to disclose the names, addresses, and telephone numbers of anyone who may have discoverable information and the subject matter involved in their knowledge. The names of those who only have evidence or information related to impeachment do not need to be disclosed.

Documents

The parties are also required to turn over copies of documents, electronically stored information, and tangible items that they have in their possession or control that they may use to present their claims or defenses. They can also describe a category of items and a location if they cannot produce copies of everything. Again, evidence used only for impeachment does not need to be disclosed.

Computations

The disclosing party is also required to produce the computations that support their claims for relief and any documentation that supports this, including any documentation of the injuries sustained, unless otherwise protected or privileged.

Insurance

The parties are also required to disclose any insurance agreement that may impact the outcome of the trial or may pay back the party seeking relief. This stops either party from winning a double recovery if both insurance and the other party are required to pay.

Exemptions

Several proceedings are exempt from the rules for initial disclosure, including:

  • Actions for review of an administrative record,
  • Habeas corpus proceedings or similar challenges to a criminal conviction,
  • Actions brought by unrepresented parties who are in the custody of federal or state governments,
  • Actions to recover benefit payments or collect on student loan debt, and
  • Actions to enforce an arbitration award.

These disclosures must be made based on the information reasonably available to the party at the time and should be made no later than 14 days after the meeting the party has regarding discovery, which will be outlined later. However, both this meeting and the initial disclosure can be objected to. If someone is not a party initially, they must provide their initial disclosures 30 days after being added or served.

A party cannot be excused from producing these disclosures because they have not adequately investigated their case. Additionally, a party cannot claim that they do not have to disclose information because the other party’s discovery is insufficient or not completed.

In addition to the items required in the initial disclosure above, the parties will need to make two additional sets of disclosures before trial.

Expert Witnesses

The parties must also disclose the name and the subject matter involved in the testimony of each expert witness they intend to present at trial. Expert witnesses are those who can testify to some special knowledge and are frequently doctors who have provided physical and mental examinations or other similarly specific knowledge.

If an expert witness was retained or employed specifically for their testimony, they must also submit a written report outlining the opinions and the basis for these opinions, the qualifications of the witness, and any exhibits that will accompany the testimony. If no written report is required, they must still outline the opinions and basis for those opinions in the disclosure. These will need to be disclosed 90 days before trial or 30 days before if the testimony is intended solely to discredit the opposing party’s witness.

Pre-Trial Disclosures

30 days before trial, the parties must exchange a list of witnesses they intend to call with designations of the witnesses that will be presented only by deposition and identification of exhibits. The other parties will have 14 days to submit any objections that they may have to the evidence in the other party’s disclosures. If they do not submit objections, unless otherwise protected, they may lose the ability to raise them.

All disclosures must be in writing, signed by the party’s attorney, and served on the other parties.

Discovery Scope and Limitations

Rule 26 allows the parties to make a reasonable inquiry for nonprivileged materials that they need to support a claim or defense in their case. However, the federal rules do limit these requests by creating a balancing test that identifies if the burden or expense of the proposed discovery outweighs the benefit it presents. The court considers the subject matter identified by the parties, the amount in controversy, the parties’ access to the information, the parties’ resources, the benefit it brings to resolving the issues, and the burden of producing the evidence.

The subject of the request does not need to be admissible evidence to be discoverable. A court order may limit the number of requests that the party seeking discovery may make.

Trial Preparation Materials

In general, any documents created specifically for trial preparation are considered privileged information. However, there are exceptional circumstances where a party may be required to disclose these materials, particularly if they are otherwise discoverable and the party seeking discovery can demonstrate they the disclosure is essential to developing their case and that they cannot discover the information in any other way.

This applies to any tangible trial preparation material or expert witnesses, but there are additional rules for how and when expert witness materials and communication may be disclosed. Particularly the rules require that the party seeking discovery pay the expert reasonable expenses incurred for the time spent preparing an answer to the request.

Protective Orders

When a party does not want to comply with a discovery request or seeks to protect information based on other rules, they may request that the court issue a protective order to block a request. When they make the request, they must prove that they have conferred with the other affected parties to try and resolve the issue, but that it must come before the court.

The court may choose a variety of options to resolve the dispute, including allowing the party to refuse the request, limiting who may encounter the material and why, having the parties simultaneously file sealed envelopes, and various other options to protect the party from the issues they may face while still complying with the discovery process and discovery rules. If the motion is denied in whole or in part, the judge will likely permit discovery of the subject sought.

Timing and Sequencing

The rules do not allow either party to seek discovery before the parties have the scheduling conference that is outlined later on unless they are permitted or required by another rule or court order. Additionally, the rules of civil procedure allow the parties to request discovery and disclose it in any way that makes sense to them unless otherwise specified.

Supplemental Information

If a party has already completed disclosures or responded to requests there is a process for how they need to add additional or corrective information. They must do so in a timely matter if they discover that their response is in some material respect incomplete as it relates to the subject matter previously disclosed. If the parties discover additional matter that needs to be added to the written report prepared by an expert, that should be disclosed in pre-trial disclosures.

Scheduling Conference and Proposed Discovery Plan

The discovery rules also require that the parties meet before a scheduled hearing to discuss the claims that they are presenting, the timing of the initial disclosures, broad discovery deadlines, possible settlement agreements, discovery methods, and discovery sought, and create a proposed discovery plan. The parties are jointly responsible for the conference and should make sure that it happens to ensure that discovery is conducted appropriately and thoroughly.

Signing and Certifying

The discovery rules require that every disclosure, request, response, or object be signed by at least one attorney of record in the attorney’s name or by the party if they are not represented. By signing the document, they are certifying that they believe the information is correct and full at the time of the disclosure or request. If the other party’s representative fails to sign a document, you are not required to act on it until it is signed. If any party represented or not violates the certification without substantial justification, they may be subject to sanctions.

Final Thoughts

Discovery appears to be a complicated process, and it can be. However, with careful attention and investigation, conducting discovery within the discovery rules will allow you to present evidence and work through the trial carefully and fully.

To learn more about the FRCP 26 and other governing rules within the US Court System and more, contact ADR Times!

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Emily Holland
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