Rule 26 disclosures
I’m sure many of you have run into problems, as I have, with the adequacy of disclosures under the new Rule 26. It seems that where the rule says “summary of expected testimony,” see Utah R. Civ. P. 26(a)(1)(A)(ii), or “summary of opinions,” see Utah R. Civ. P. 26(a)(4)(A), practitioners tend to give overly simplistic statements of a witness’ expected testimony. This is not consistent with the spirit of the rules. Recently the Utah Court of Appeals explained further the intent and obligation of the rules in RJW Media Inc., v. Heath, 2017 UT App 34.
In RJW, the Court of Appeals dealt with disclosure of a non-retained expert’s testimony. Although the witness was disclosed in the initial disclosures, the detail of this expert’s testimony wasn’t revealed until four days before trial and the other side properly objected. The initial disclosure merely gave the witness’s name, title and a generic description of the topics about which the witness was expected to testify. Id. ¶ 7. The trial court overruled the objection and allowed the testimony, stating that the opposing party should have objected sooner to the inadequate disclosure-though the disclosing side obviously felt uneasy about their initial disclosure and amended their disclosure four days before trial.
On appeal, the Utah Court of Appeals agreed that the disclosure was inadequate. Citing the advisory committee’s notes, the Utah Court of Appeals said the disclosure must “fairly inform” the opposing party. Id. ¶ 23. Broad, conclusory statements are inadequate. Id. ¶ 24. The Court went on to explain the issue this way:
[T]he rules embrace the idea of competing risks. A disclosing party who endeavors, by stratagem or otherwise, to disclose as little as possible faces a significant risk that the disclosure will be found insufficient and the evidence or the witness may not be allowed. To minimize this risk, disclosing parties should be liberally forthcoming rather than minimally compliant and risk the possible consequences of testimony exclusion. Likewise, where the sponsoring party under-discloses, the receiving party may object and attempt to compel further disclosure. And while there is no penalty in the rule for failing to do so, the receiving party does take the risk that a trial court may ultimately find the disclosure sufficient, as occurred here.
Id. ¶ 30.
Each party needs to analyze their case and think beyond the end of their nose in litigation. Disclosures should be carefully crafted, and when disclosures are inadequate, consideration should be made well in advance for more detail.
Lewis Reece
Snow Jensen & Reece