Disclosure and Discovery

Introduction

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.

 

Initial disclosures

Parties must disclose things that help prove their case or defenses to their case. This includes information, documents and witnesses.

See the Initial Disclosures web page for more information and forms.

 

Fact discovery

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.

 

Discovery methods

• Request for admissions
  • 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.
  • Generally, a party has 28 days to respond to a request for production of documents, but if the requests were served by U.S. mail they have 7 extra days to respond. URCP 6(c).
  • A party who fails to respond to a request for admissions could lose their case automatically.
  • For information on how to answer a Request for Admissions, see our page on Answering a Request for Admissions or see URCP 36.
• Request for production of documents
  • 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.
  • Generally, a party has 28 days to respond to a request for production of documents, but if the requests were served by U.S. mail they have 7 extra days to respond. URCP 6(c).
  • For more information on requests for production of documents see URCP 34.
• Interrogatories
  • Interrogatories are written questions that are answered in writing under oath. A party may ask interrogatories only of another party.
  • Generally, a party has 28 days to respond to interrogatories, but if the interrogatories were served by U.S. mail they have 7 extra days to respond. URCP 6(c).
  • For more information on interrogatories see URCP 33.
• Depositions
  • Depositions are oral questions that are answered under oath and recorded. A party may depose (ask someone questions under oath) 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.
• Medical examinations
  • 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.
  • For more information on medical examinations see URCP 35

 

Limits on standard discovery. URCP 26(c)(5)

• 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 four 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.

 

Discovery Motions

Discovery Motion Procedures. URCP 37

Meet and Confer. Before filing a motion for extraordinary discovery, a motion to compel discovery or a motion for a protective order, the parties must meet (in person or by telephone) to try to resolve or narrow the issues without court involvement.

Statement of Discovery Issues. If the parties cannot resolve the issues themselves and want the court to decide them, the moving party must file a Statement of Discovery Issues that states:

• the relief sought and the grounds for the relief sought stated succinctly and with particularity;
• a certification that the requesting party has in good faith conferred or attempted to confer with the other affected parties in person or by telephone in an effort to resolve the dispute without court action;
• that the discovery requested is proportional under URCP 26(b)(2); and
• if the statement requests extraordinary discovery, a statement certifying that the party has reviewed and approved a discovery budget.

Length and Attachments. The Statement of Discovery Issues cannot be more than 4 pages long. The party filing it must attach to it a copy of the disclosure, request for discovery or the response at issue. The party also must file a proposed order with their Statement of Discovery Issues.

Objection. No more than 7 days after the Statement of Discovery is filed, any other party may file an Objection to the Statement of Discovery Issues. The Objection cannot be more than 4 pages in length and must address the issues raised in the statement. The objecting party must file a Proposed Order with their Objection.

Court's decision. Once the time for the objection has passed, the party who filed the Statement of Discovery Issues must file a Request for Submit for Decision. (URCP 7(g)). If they don't file it, another party may do so. The court will either:

• decide the issues based on the papers filed
• conduct a hearing by telephone or other electronic communication; or
• order additional papers be filed and establish a schedule for them.

Motion forms. Use the forms found on the Motions page, for discovery motions. Refer to URCP 37 regarding what sort of requests can be made in your motion.

Motion or stipulation for extraordinary discovery. URCP 26(c)(6) and URCP 37(a)(1)(b). 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 (PDF) 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.

 

Expert disclosure and discovery. URCP 26(a)(4)

• URCP 26(a)(4)

Within 14 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 14 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)

• 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.