Initial Disclosures

What is disclosure?

All parties in a lawsuit have the opportunity to find out about the strengths and weaknesses of the other parties' case.

• Disclosure is information that must be given to other parties without being asked for it.
• Discovery is information that must be given to other parties, but only if they are asked for it.

Parties must disclose things that help prove their case or defenses to their case. This includes:

• information,
• documents and
• witnesses.

Initial disclosures must be based on the information the parties know or learn after looking into the facts of the case. A party must provide disclosures even if the other party does not. Once the information is disclosed, the parties have a continuing duty to update the information.

If a party does not provide information that should have been disclosed, the judge might not allow the party to use that information at trial. This could mean losing the case.

 

Time for initial disclosures

The following timelines apply for most cases. Different timelines apply for family law, eviction (unlawful detainer) and probate cases.

The plaintiff or petitioner must give initial disclosures within

• 14 days after service of the first answer.

The defendant or respondent must give initial disclosures

• within 42 days after filing of the first answer to the complaint.

There are different requirements for the disclosure of expert witnesses. See URCP 26(a)(4) for details.

 

General disclosure requirements

Parties must disclose:

• Discoverable information
  A list of the people who know about the case and what they know.  This includes people who could provide information to support the case or defenses to the case.
• Witnesses
  A list of witnesses they might call who can support of their case, and a summary of what they will say.
• Documents supporting case
  Copies of all documents which support their case.
• Electronically stored information
  Copies of all electronically stored information (including emails, text messages and social media posts) they have or have control of which support their case.
• Tangible things
  All physical object they have or control which support their case.
• Documents referred to in pleadings
  Copies of all documents referred to in the complaint, petition or answer.
• Damages
  An estimate of damages claimed and copies of documents or other evidence that support or explain the estimate.
• Agreement to Satisfy, Indemnify, or Reimburse
  Copies of any agreements where someone else might have to pay the judgment, or reimburse them for the judgment, including insurance.

URCP 26(a)(1).

 

Disclosure requirements in family law cases

Parties in these kinds of cases:

• divorce
• temporary separation
• separate maintenance
• parentage;
• child custody
• child support
• modification of a domestic relations order

must disclose all the information listed in the General disclosure requirements section of this page and provide a Financial Declaration to the other party. Both parties must provide the financial declaration within 14 days after filing of the first answer to the complaint.

See the Financial Declaration web page for more information about the requirements and forms. URCP 26.1.

 

Disclosure requirements in eviction or unlawful detainer cases

Parties in eviction or unlawful detainer cases have different rules.

Plaintiff's disclosures - served with summons and complaint

When the plaintiff serves summons and complaint the following on the defendant they must also serve:

• any written rental agreement;
• the eviction notice that was served;
• an itemized calculation of rent past due, damages, costs and attorney fees at the time of filing;
• an explanation of the factual basis for the eviction; and
• notice to the defendant of the defendant's obligation to serve the disclosures required by URCP 26.3(c).

Disclosures required by both parties when the plaintiff asks for an occupancy hearing.

If the plaintiff asks for an occupancy hearing under Utah Code section 78B-6-810, the plaintiff must serve on the defendant, along with the request:

• any document not yet disclosed that the plaintiff will offer at the hearing; and
• the name and, if known, the address and telephone number of each fact witness the plaintiff may call at the evidentiary hearing and, except for an adverse party, a summary of the expected testimony.

The defendant must serve the required disclosures on the plaintiff no less than 2 days before the hearing. The defendant must serve the disclosures by the method most likely to be promptly received.

Disclosures required by both parties when the defendant asks for an occupancy hearing

If the defendant asks for an evidentiary hearing under Utah Code section 78B-6-810, the defendant must serve on the plaintiff, along with the request:

• any document not yet disclosed that the defendant will offer at the hearing; and
• the name and, if known, the address and telephone number of each fact witness the defendant may call at the occupancy hearing and a summary of the expected testimony.

The plaintiff must serve the required disclosures on the defendant no less than 2 days before the hearing. The plaintiff must serve the disclosures by the method most likely to be promptly received.

After the occupancy hearing – pretrial disclosures and objections

If the defendant is not evicted at the occupancy hearing and the case goes to trial, other disclosures are required.

No later than 14 days before trial, the parties must serve the disclosures required by URCP 26(a)(5)(A). No later than 7 days before trial, each party must serve and file counter designations of deposition testimony, objections and grounds for the objections to the use of a deposition and to the admissibility of exhibits.

For a complete list of initial disclosures required in eviction or wrongful detainer cases, see URCP 26.3.

 

Disclosure requirements in probate cases

If an objection is filed in a guardianship, conservatorship or other probate case, the parties must disclose all the information listed in the General disclosure requirements section of this page, and the following:

Guardianship and conservatorship cases

• any document purporting to nominate a guardian or conservator, including a will, trust, power of attorney, or advance healthcare directive; and
• a list of less restrictive alternatives to guardianship or conservatorship that the petitioner has explored and ways in which a guardianship or conservatorship of the respondent may be limited.

All other probate matters

any other document purporting to nominate a personal representative or trustee after death, including wills, trusts, and any amendments to those documents.

When the information must be disclosed

The documents must be served within 14 days after the objection is filed.

Who must be served with the disclosures

The parties named in the guardianship, conservatorship or other probate petition and the objection, and anyone who has requested notice.

Original documents

If there is a dispute about whether an original document (such as a will or a nomination of guardianship) is valid, the person with the original document must allow the other parties in the case to inspect the document. This must happen within 14 days of when the case is referred to mediation.

Utah Rule of Civil Procedure 26.4

 

Disclosure requirements in personal injury cases

Parties in a personal injury case must disclose all the information listed in the General disclosure requirements section of this page, and the following:

Plaintiff's additional initial disclosures

• A list of all health care providers who have treated or examined them for the injury, and other related information.
• A list of all other health care providers who treated or examined them for any reason in the 5 years before the event, and other related information.
• Their social security number or Medicare health insurance claim number, full name, and date of birth.
• A description of all disability or income-replacement benefits received (if they are claiming lost wages or lost earning capacity), and other related information.
• A list of their employers for the 5 years preceding the event (if they are claiming lost wages or lost earning capacity), and other related information.
• Copies of all bills, statements, or receipts for medical care, prescriptions, or other out-of-pocket expenses incurred as a result of the injury.
• Copies of all investigative reports prepared by any public official or agency and in the possession of plaintiff or counsel that describe the event.
• Copies of all written or recorded statements of individuals, in the possession of plaintiff or counsel, regarding the event or the nature or extent of the injury (with some exceptions).

Defendant's additional disclosures

• A statement of the amount of insurance coverage applicable to the claim, including any potential excess coverage, and any deductible, self-insured retention, or reservations of rights, giving the name and address of the insurer.
• Unless the plaintiff makes a written request for a copy of an entire insurance policy to be disclosed under URCP 26(a)(1)(D), it is sufficient for the defendant to disclose a copy of the declaration page or coverage sheet for any policy covering the claim.
• Copies of all investigative reports, prepared by any public official or agency and in the possession of defendant, defendant's insurers, or counsel, that describe the event giving rise to the claim.
• Except as protected by URCP 26(b)(5), copies of all written or recorded statements of individuals, in the possession of defendant, defendant's insurers, or counsel, regarding the event giving rise to the claim or the nature or extent of the injury.
• The information required by Rule 9(l) related to allocation of fault.

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.

URCP 26.2.

 

Serving the initial disclosures

Disclosures can be served by one of the ways allowed under URCP 5. Initial disclosures should not be filed with the court. Instead, file a certificate of service with the court saying you have provided their initial disclosures to the other party.

• If a party is represented by an attorney, on their attorney instead of the party.
• If a party is represented by a licensed paralegal practitioner (LPP), on their LPP instead of the other party (URCP 86).

 

Continuing duty to disclose

Parties have an ongoing duty to update their disclosures if they learn new information, or find out that their disclosures are incomplete or incorrect in some important way. If this happens, a party must promptly provide the additional or correct information to the other parties in the case. This is called supplemental disclosure. The supplemental disclosure must explain why the additional or correct information was not previously provided. URCP 26(d).

 

Failure to disclose

A party cannot use evidence they failed to disclose at any hearing without a good explanation.

A party can also be sanctioned under URCP 37. Sanctions may include an award of non-disclosed assets to the other party, attorney's fees or other sanctions that the court finds appropriate.

Not complying with the disclosure requirements in a family law case does not keep the other party from obtaining a default judgment, proceeding with the case, or seeking other relief from the court. URCP 26.1.

See the Discovery Motions section of the Disclosure and Discovery web page for information about what to do if the other party fails to disclose.

 

Forms

 

The forms you need depend on your case. What is your case about?