Disclosure Without a Request

Required Disclosures and Timing

Disclosure Without a Request

Rule 26(a) of the Federal Rules of Civil Procedure, titled Required Disclosures, directs each party to hand certain information to the other parties without waiting to be asked.¹ Lawyers also call this compulsory or automatic disclosure, meaning the mandatory divulging of information to a litigation opponent under the procedural rules.² The direction of the duty sets it apart from the devices students meet first in discovery. Interrogatories under Rule 33 (written questions a party must answer under oath), requests for production under Rule 34 (requests to inspect or copy documents), and depositions under Rule 30 (oral testimony taken from a witness) all begin when one party decides what it wants and asks for it.³ Required disclosure begins with the rule itself, so the party that holds the information is the party that must act.

In a request-driven system the party seeking evidence controls the process. It must affirmatively ask, and it must specify what it wants from the evidence-possessor.⁴ Most cases call for the same few categories of information, and formally requesting them case after case is the cost the disclosure rule targets. The mandatory disclosures are designed to reduce the expense of requesting information that is sought in most cases, and their main effect is to start the parties down the road of information exchange quickly and on a self-executing basis.⁵ Whether the process actually saves money is a serious question, but the purpose is plain. In all but a small set of simple actions exempted by rule, disclosure is meant to accelerate discovery, encourage settlement, and make discovery less adversarial and less costly.⁶

The Federal Rules did not carry the idea to its limit. A pure disclosure system would require each side to reveal all the relevant information it knows, which leaves the evidence holder in principal control, and the rules instead take a middle path in which initial disclosures are supplemented by further discovery.⁷ Required disclosure therefore supplies a baseline, and ordinary discovery supplies everything else. Apart from required initial disclosures, disclosures about testifying experts, and certain pretrial disclosures, all other discovery is discretionary and party-driven.⁸ Rule 26(a) itself calls for three waves of disclosure, so the baseline arrives in stages over the life of the case.⁹ A party that wants more than the rule hands over keeps every request-driven device for getting it.

The line between what must be provided automatically and what is available only on request has been contested for years, and the controversy has produced significant alterations of the Federal Rules and of the rules of some states.¹⁰ The present initial-disclosure duty reflects a retreat from a broader first attempt. When it was amended in 1993, the duty to name witnesses and describe documents was tied to disputed facts alleged with particularity in the pleadings, and critics objected that a party might have to volunteer harmful material without any discovery request.¹¹ The 2000 amendments answered that objection by limiting the duty to witnesses and documents the disclosing party "may use to support its claims or defenses," and by dropping the link to particular pleading.¹² The reference to "use" is read broadly to include pretrial conferences, discovery, and motions, not solely trial, so a party must think early about everything it will rely on during the litigation.¹³

The standard works because each party knows its own case. It can say at the outset which witnesses and records it expects to rely on, and its opponent receives what is needed to meet that evidence. Information the party will not use stays reachable only by request, and that includes anything the party plans to use solely to impeach adverse witnesses.¹⁴

The hinge in that scene is the disclosing party's own intended use. For any witness or document, the question is whether the disclosing party may use it to support a claim or defense, and the fact that the person exists or that the information is relevant does not answer it. When the answer is no, the plaintiff's route is ordinary discovery, which reaches any nonprivileged matter that is relevant to a party's claim or defense and proportional to the needs of the case.¹⁵

Disclosures must also take a particular form. Unless the court orders otherwise, every disclosure under Rule 26(a) must be in writing, signed, and served.¹⁷ Each element does separate work. A writing gives the recipient a definite document to rely on, the signature ties a responsible signer, the attorney or the party, to what the paper says, and service puts the document in the hands of the other parties. Rule 26(g)(2) supplies the consequence of leaving the signature off: the other parties have no duty to act on an unsigned disclosure until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attention of the attorney or party.¹⁸ The first half spares the recipient from relying on a paper no one has vouched for. The second half gives the disclosing side a short window to repair a careless omission, while a paper that no one will sign is struck from the case.