At the start of many lawsuits, the parties need to reveal facts about themselves and the case. Among other reasons, they do this to enable the other parties to focus their discovery efforts and to allow everyone to identify possible conflicts of interest.
Why should you continue to read this post about initial disclosures?
You’re curious about the work that goes into a lawsuit shortly after the defendant answers..
You’re angry and you need a nice, dull law blog post to calm down and forget about those kids that threw eggs at your bicycle.
You’re not ready yet for posts about subsequent disclosures.
Different Courts Have Different Requirements
There is no uniform set of initial disclosures that litigants must make from court to court. Instead, different courts have different rules.
For example, federal court has Rule 26(a)(1)(a), which sets forth the categories of disclosures a litigant must make in many (but not all) types of disputes. Those include listing all of the witnesses each party is aware of, identifying where evidence may be, and stating whether there is any applicable insurance that may cover the claim. You can read a sample one here and another here. These disclosures enable other litigants to serve discovery requests on those witnesses and to obtain the evidence identified in the disclosure. It will also enable the litigant to join the insurance company to the dispute to make sure a company with deep pockets is involved to satisfy a judgment.
In federal appeals court, however, the disclosure rules are different. This is because it is too late in an appeal to gather discovery or add a party. Instead, Federal Rules of Appellate Procedure 7.1 require corporate parties to an appeal to disclose facts about their ownership. This helps enable judges to recuse themselves if there is a possible conflict of interest arising from their investment in a company that owns one of the parties.
Neither New York State nor Massachusetts courts, however, have similar initial disclosure rules. Parties before those courts may serve interrogatories or other discovery requests to learn about other evidence to obtain.
Rule 26(f) Conferences
In federal trial court, the deadline to make initial disclosures is triggered by the date the parties meet (often through a telephone call) for a Rule 26(f) conference. This conference usually does not involve the judge and just provides a forum for the parties’ counsel to discuss the details of how they will exchange evidence and identify any scheduling issues.
Following the Rule 26(f) conference, the parties often need to draft a proposed scheduling order pursuant to Rule 16(b). The proposed schedule reflects the parties proposals for deadlines to complete various aspects of the litigation. The judge may then approve the schedule, modify it, or discuss it in person at a hearing that she organizes.
Supplementing Initial Disclosures
Counsel often make initial disclosures at the start of the case when they are the least familiar with the facts. After spending months studying the documents and interviewing witnesses, they commonly learn additional information about knowledgable witnesses and the location of information. Accordingly, they often update the disclosures by producing a supplement. They do this, among other reasons, to preserve their ability to rely on the newly found witnesses and information and to avoid their opponents claiming that the evidence should be excluded because it was hidden.