URCP 026

Advisory Committee Note for Discovery Rules Amendments

Objectives. The 1999 amendments to Rules 16, 26, 30, 32 and 33 comprise a new model for discovery and case management in state court cases. The objective of the new model is simply to better manage litigation by planning. The amendments achieve this simple objective as follows:

They require the parties and encourage the judge to evaluate the case early in the process and to plan appropriate discovery;

They establish default deadlines and limits to govern those cases in which the parties cannot agree to a discovery plan and do not seek a judicial order; and

They require each party to disclose to other parties the names of persons with discoverable information supporting that party's claims or defenses, a description of documents supporting that party's claims or defenses, a computation of damages and the existence of insurance agreements.

The rule changes are intended to simplify discovery and promote full disclosure of discoverable information. The limits and deadlines specified in these rules are not intended to fit all cases. Parties should cooperate and stipulate to and courts should consider different deadlines and limits appropriate for specific cases. The rule changes that implement these objectives are as follows:

Discovery and Scheduling Conference of the Parties. Rule 26(f). The 1999 amendments require the parties to meet and confer about the case as soon as practicable after commencement of the action. (The deadline for filing the stipulated discovery plan effectively limits the time for the conference to within 46 days after the first answer is filed.) To help ensure the case does not stall, the rule imposes on plaintiff's counsel the obligation to schedule the meeting and to submit to the court the discovery plan and order resulting from the meeting. At the meeting the parties settle what they can and develop a discovery plan for any remaining issues. At this point the content of the discovery plan is entirely within the control of the parties. The rule suggests elements commonly raised in the course of discovery, but counsel should tailor the discovery plan to meet the needs of the particular case. Within 14 days after the meeting, plaintiff's counsel prepares a stipulated discovery plan and order, which is submitted to the court for approval. If the parties cannot agree or can only partially agree to a stipulated discovery plan, the plaintiff must and any party may move for a discovery order. If the court does not order otherwise, the default deadlines and limits of the rules govern. Discovery proceeds in the normal course and in accordance with the discovery plan after the discovery and scheduling conference. The parties are required to meet once, but subsequent meetings, as necessary, to amend the discovery plan are not precluded.

A later-added party is bound by the discovery order but can conduct a discovery and scheduling conference to obtain a stipulated amendment to the original plan. If the parties will not stipulate to reasonable discovery by a later-added party, the court can order appropriate relief upon motion. The court should be sensitive to the nature, extent and timing of discovery by a later-added party.

Scheduling and Management Conference with the Court. Rule 16(b). The 1999 amendments provide that any party can file a motion for a discovery order on issues the parties cannot agree upon, and the court will rule upon that motion. Any party may seek a scheduling and management conference with the court, but, because of large caseloads, the rules permit the court to decline the conference. By conducting a scheduling and management conference, however, the court has the opportunity early in the process to evaluate the case and manage it accordingly, to explore mediation and settlement, to resolve disputes over the nature and extent of discovery, and to identify issues collateral to the litigation. It is not anticipated that judges will manage a case contrary to the stipulation of the parties. However, the court's interest in case management is independent of that of the parties, and the court needs the discretion independently to manage the case, especially when the parties cannot agree.

The scheduling and management conference is designed to encourage the parties and the court to take earlier and better control of the litigation. If possible, the trial date should be set at this conference as well as dates for all of the necessary pretrial steps and any modifications to the presumptions established by the discovery rules.

To avoid possible confusion surrounding the multiplicity of objectives of the various conferences with the court, the amendments delete the long list of objectives found in the former rule, which the committee determined are adequately covered under subsection (a). The objectives remain sound. The scheduling and management conference is a particular type of conference with specified and limited objectives. Any other conference prior to trial is properly called a pretrial conference and the objectives are more varied. In addition to the objectives in the rule itself, the following objectives may be appropriate:

(1) forming and simplifying issues and eliminating frivolous claims and defenses;

(2) obtaining admissions of fact and stipulations to documents;

(3) obtaining stipulations or rulings on the admissibility of evidence;

(4) referring matters to mediation or other alternative dispute resolution;

(5) adopting special procedures for managing actions that may involve complex issues of fact or law, multiple parties, or unusual proof problems; and

(6) the form and substance of a pretrial order.

Required Initial Disclosures. Rule 26(a). The 1999 amendments require each party to provide to all other parties the names of persons with discoverable information supporting that party's claims or defenses, a description of documents supporting that party's claims or defenses, a computation of any damages it claims and any insurance that may satisfy some or all of any judgment. This exchange of information occurs within 14 days after the discovery and scheduling conference of the parties. A party can only disclose that which is known at the time. As further information is developed, the party is under a duty to supplement the initial disclosures. If a party fails to comply with the disclosure rule, Rule 37(f) requires the court to prohibit the use of the witness or evidence at trial unless the failure was harmless or there is good cause for the failure. The court may order any other sanction it determines to be appropriate and Rule 37(f) provides some examples.

Expert reports. Rule 26(a)(3). Unlike the Federal Rules of Civil Procedure, an expert's report need not be written and signed by the expert. The report may be signed by the witness or the party. In addition to the qualifications of the expert, the report must contain the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion. In effect, the report will serve in lieu of responses to standard interrogatories. The committee considered but decided not to adopt the federal rule governing expert reports. Both plaintiffs' attorneys and defense attorneys reported on the high cost of reports by experts, the growth of non-practicing experts as a profession, and the need to depose experts regardless of a written report. The expert should not be permitted to testify at variance with the report, regardless whether the expert or the party prepares or signs it. For this reason, the committee believes the expert should prepare and sign the report whenever possible and should always review and approve the report. For genetics testing in paternity cases, compliance with Utah Code Title 78B, Chapter 15, Part 5 is sufficient to satisfy the expert report requirement unless a party objects and specifically requests a report under the rule.

Exempt cases. Rule 26(a)(2). The scope of the exemption is very limited. If a case is exempt, the parties do not need to meet and confer under Rule 26(f), and they do not need to disclose under Rule 26(a)(1). All other discovery provisions apply to exempt cases. All information subject to mandatory disclosure in a non-exempt case is subject to discovery using traditional methods in an exempt case. The committee did not seek to exempt simple cases. The rule amendments benefit simple as well as complex litigation. The only exempt cases are those identified in Rule 26(a)(2).

Depositions. Rule 30. The party taking the deposition may designate and pay for any method of recording the deposition. Any other party may designate and pay for an additional method of recording. The rule prohibits argumentative and suggestive objections.

Default Deadlines and Limits. The discovery rules establish presumptive deadlines and limits, the purpose of which are to encourage stipulations to deadlines and limits suitable to the needs of the particular case. If the discovery needs of the parties are not equivalent, the court, in entering a discovery order, should consider whether the presumptive deadlines and limits are being used by one party to frustrate legitimate discovery. The discovery rules establish the following new deadlines and limits, any of which can be modified by stipulation of the parties or order of the court:

Procedure

Deadline or Limitation

Discovery and scheduling conference of the parties

Held as soon as practicable after commencement of the action. (The deadline for filing the stipulated discovery plan effectively limits the time for the conference to within 46 days after the first answer is filed.)

Stipulated discovery plan and order

Submit to court within 14 days after the discovery and scheduling conference but in no event more than 60 days after the first answer is filed.

Required initial disclosures

Provide within 14 days after the discovery and scheduling conference.

Supplement required initial disclosures

At appropriate intervals.

Amend response to interrogatories, request for production or request for admission

Seasonably.

Initial disclosures by later added party

Provide within 30 days after being served.

Motion by later added party to amend the discovery plan

File within a reasonable time after being joined.

Number of depositions oral and written

Ten per side.

Review and modify record of deposition

Within 30 days after notice that record is available but only if deponent requested opportunity to review record prior to completing deposition.

Interrogatories

No more than 25 questions, including discrete subparts.

Fact discovery

Begins after the parties conduct their discovery and scheduling conference. Closes 240 days after first appearance by a defendant.

Identify expert witnesses and disclose expert reports

Within 30 days after close of fact discovery.

Identify rebuttal expert and disclose rebuttal expert reports

Within 60 days after disclosure by other party of expert identity and report.

Deposition of expert witness

Conduct within 60 days after disclosure of the expert's report.

Certify that case is ready for trial

File immediately upon the close of all discovery.

Pretrial disclosure of "will call" and "may call" witnesses, deposition testimony, and exhibits

Provide at least 30 days prior to trial.

Objections to pretrial disclosures

File within 14 days after pretrial disclosure.

Trial

Schedule as soon after certificate of readiness as is mutually convenient for court and parties.

Code of Judicial Administration. Rules 4-104 and 4-502 are being repealed and the provisions of those rules are being integrated into the Rule of Civil Procedure. The certificate of readiness for trial required by 4-104 is now in URCP 16(b) and the restrictions on filing discovery documents with the court are now in Rule 26(i).

The Supreme Court order approving the amendments directed that the new procedures be applicable only to cases filed on or after November 1, 1999.