Disclosure and Discovery
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Each party has the opportunity to find out about the strengths and weaknesses of the other parties’ case. Some of the information must be disclosed to the other parties, which means the party with the information must provide it to the others without being asked for it. Other information must be discovered, which means the party with the information must provide it, but only if asked for it.
Essentially, a party must disclose to the other parties the information, documents and witnesses that support the party’s claims and defenses. Discovery refers to the procedures by which each party learns about the information, documents and witnesses that the other party does not have to disclose.
Each party must automatically provide additional documents and information as they become known if the information is something that must be disclosed or if information of that type has already been asked for during discovery. If a party fails to provide information that should have been disclosed or fails to provide discoverable information if asked for it, the judge might not allow the party to use that information at trial.
Disclosure and discovery are mixed in time, in approximately the following order:
- initial disclosures;
- fact discovery;
- expert disclosures;
- expert discovery; and
- pretrial disclosures.
The plaintiff must make initial disclosures within 14 days after service of the first answer. The defendant must make initial disclosures within 28 days after the plaintiff’s first disclosure or within 28 days after that defendant’s answer, whichever is later.
Family law cases. URCP 26.1. For a complete list of additional disclosures and attachments to the financial declaration in divorce, temporary separation, separate maintenance, parentage, custody, child support, and modification cases, see URCP 26.1. For more information and forms, see our page on Financial Declaration.
Personal injury cases. URCP 26.2. For a complete list of additional disclosures in a personal injury case, see URCP 26.2. The plaintiff may move for an order to protect information that is sensitive, confidential and wholly irrelevant to the lawsuit. URCP 37 governs protective orders. Any non-public information may be used only for the purposes of the case, unless otherwise ordered by the judge. For more information and forms, see our page on Non-public Records.
Standard discovery and extraordinary discovery. Depending on the amount of damages claimed, a party is entitled to a certain amount of standard discovery, meaning the number of depositions, interrogatories, requests for admission, and requests for the production of documents. If a party needs more than the standard amount, the parties can stipulate to extraordinary discovery or file a motion asking the judge to order extraordinary discovery.
What can be discovered? URCP 26(b). Parties may discover any matter, not privileged, which is relevant to the claim or defense of any party if the discovery satisfies the standards of proportionality.
Proportionality. URCP 26(b). Discovery and discovery requests are proportional if:
- the discovery is reasonable, considering the needs of the case, the amount in controversy, the complexity of the case, the parties' resources, the importance of the issues, and the importance of the discovery in resolving the issues;
- the likely benefits of the proposed discovery outweigh the burden or expense;
- the discovery is consistent with the overall case management and will further the just, speedy and inexpensive determination of the case;
- the discovery is not unreasonably cumulative or duplicative;
- the information cannot be obtained from another source that is more convenient, less burdensome or less expensive; and
- the party seeking discovery has not had sufficient opportunity to obtain the information by discovery or otherwise, taking into account the parties’ relative access to the information.
The party seeking discovery always has the burden of showing proportionality and relevance. To ensure proportionality, the court may enter orders under Rule 37.
- Depositions. URCP 30. Depositions are oral questions that are answered under oath and recorded. A party may depose another party or a witness, including an expert witness. To depose a party, notify the party of the date, time and location of the deposition, including any other information required by URCP 30. To depose a non-party witness, serve the witness with a subpoena. For more information and forms, see our page on Subpoenas. A party may also interview a witness without deposing them.
- Interrogatories. URCP 33. Interrogatories are written questions that are answered in writing under oath. A party may ask interrogatories only of another party.
- Request for production of documents. URCP 34. A party may serve on any other party a request to produce discoverable documents, electronically stored information or tangible things and permit them to be copied. Any party may also serve on any other party a request to permit entry upon land.
- Medical examinations. URCP 35. If the mental or physical condition of a party is in controversy, the court may, for good cause, order the party to submit to a physical or mental examination. The person being examined may record the examination unless the party requesting the examination shows that the recording would unduly interfere with the examination. The party requesting the examination must disclose a detailed report written by the examiner.
- Request for admissions. URCP 36. A party may serve on any other party a request to admit the truth of any discoverable matter stated in the request, including the genuineness of any document. The matter must relate to statements or opinions of fact or the application of law to fact.
Limits on standard discovery. URCP 26(c)(5)
The limits on standard discovery are determined by the amount of damages claimed. The complaint must allege a specific amount of damages or must allege that the case falls into one of the three discovery tiers. The discovery tier should be stated as part of the complaint’s caption at the top of the first page. A case in which there are no money damages is automatically a tier 2 case. Most family law cases, like adoption, divorce and parentage, do not have money damages and will automatically be tier 2 cases. A pleading that qualifies for tier 1 or tier 2 discovery waives any right to recover damages above the tier limits, unless the pleading is amended under URCP 15.
Standard fact discovery per side (plaintiffs collectively, defendants collectively, and third-party defendants collectively) in each tier is shown in the table below. The days to complete standard fact discovery are calculated from the date the first defendant’s first disclosure is due. The days to complete standard fact discovery do not include expert discovery.
Amount of Damages
Total Fact Deposition Hours
Rule 33 Interrog-atories including all discrete subparts
Rule 34 Requests for Production
Rule 36 Requests for Admission
Days to Complete Standard Fact Discovery
|1||$50,000 or less||3||0||5||5||120|
|2||More than $50,000 and less than $300,000 or non- monetary relief||15||10||10||10||180|
|3||$300,000 or more||30||20||20||20||210|
Motion or stipulation for extraordinary discovery. URCP 26(c)(6). To obtain discovery beyond standard discovery a party must file, before the close of standard discovery and after reaching the limits of standard discovery:
- a stipulated statement that extraordinary discovery is necessary and proportional and that each party has reviewed and approved a discovery budget; or
- a motion for extraordinary discovery, setting forth the reasons why the extraordinary discovery is necessary and proportional and certifying that the party has reviewed and approved a discovery budget and certifying that the parties have met and tried to resolve or narrow the issues without court involvement.
Motions to compel disclosure or discovery. URCP 37. If a party does not respond to a discovery request, the party seeking discovery can file a motion asking the judge to compel discovery and impose sanctions. The party seeking discovery must show the judge that the information is discoverable and that discovery is proportional to the case. A motion may also be filed to compel disclosures. If a party fails to disclose, that party may not be able to use the documents or information at trial.
Motions for protective orders from disclosure of discovery. URCP 37. If a party is seeking to discover documents or information that are not subject to discovery, the party from whom discovery is sought can file a motion asking the judge for an order protecting the documents or information. The party seeking discovery must show the judge that the documents or information are discoverable and that the discovery is proportional to the case.
Special procedures for disclosure and discovery motions under Rule 4-502. There are special procedures for resolving motions for extraordinary discovery, motions to compel discovery and motions for a protective order.
Before filing a motion for extraordinary discovery, motion to compel discovery or motion for a protective order, the parties must meet and try to resolve or narrow the issues without court involvement. If the parties cannot resolve the issues without court involvement, the moving party must file a “Statement of Discovery Issues” that states:
- the relief sought;
- the reason for the relief sought; and
- that the parties have met and tried to resolve or narrow the issues without court involvement.
If the motion is for extraordinary discovery, the Statement of Discovery Issues must also state the reasons why the discovery is necessary and proportional and that the party has reviewed and approved a discovery budget. If the motion is to compel discovery, the Statement of Discovery Issues must also state the reasons why the discovery is necessary and proportional. If the motion is for a protective order, the party responding to the motion must state the reasons why the discovery is necessary and proportional.
Within 5 days following service of the Statement of Discovery Issues, any party responding to the motion must file and serve a “Statement in Opposition,” responding to the issues raised in the moving party’s statement.
The Statement of Discovery Issues and the Statement in Opposition may not exceed 4 pages and may not include exhibits or attachments. Each party must also file a proposed order consistent with their requested relief.
The court will schedule a conference, in person or by telephone, if necessary, and will promptly decide the issue. If the court decides that full motion procedures under URCP 7 are necessary, the court will set a briefing schedule.
Expert disclosure and discovery. URCP 26(a)(4)
Within 7 days after the close of fact discovery, the party who has the burden of proof on any issue must disclose to the other parties the following information about any expert retained to testify about that issue:
- the expert’s name and qualifications;
- a list of all publications the expert has written within the preceding 10 years,
- a list of other cases in which the expert has testified as an expert within the preceding 4 years,
- a brief summary of the opinions to which the witness is expected to testify,
- all data and other information that will be relied upon by the expert in forming those opinions, and
- the compensation to be paid for the expert’s study and testimony.
Within 7 days after that, the party opposing the expert may elect either to depose the expert or to require a written report from the expert. The deposition must occur or the report must be provided within 28 days after the election is made. If no election is made, then no further discovery of the expert is permitted. The party offering the expert pays for the report; the party opposing the expert pays for the deposition. The deposition may not exceed four hours.
The party who does not bear the burden of proof on the issue must disclose the same information about their experts. And their experts are subject to discovery according to the same schedule.
Continuing duty to supplement disclosure and discovery. URCP 26(d)
A party must make disclosures and respond to discovery requests based on the information then known or reasonably available to the party. If a party learns that a disclosure or discovery response is incomplete or incorrect in some important way, the party must timely provide the additional or correct information. The supplemental disclosure or response must state why the additional or correct information was not previously provided.
If a party fails to disclose or to supplement a disclosure or discovery response, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.