What is FRCP 26?
What are the requirements of Rule 26?
What are the essential elements you should know!
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What Is FRCP 26
It is titled “Duty to disclose; General Provisions Governing Discovery”.
In the United States, discovery is a crucial step in any litigation allowing a party to “discover” or obtain further information, documents, evidence, or other bolster its case.
The party requesting documents and the party producing documents must respect the obligations set out in the Federal Rule of Civil Procedure 26.
FRCP 26 is composed of the following paragraphs:
- FRCP 26(a): Required Disclosures; Methods to Discover Additional Matter.
- FRCP 26(b): Discovery Scope and Limits.
- FRCP 26(c): Protective Orders.
- FRCP 26(d): Timing and Sequence of Discovery.
- FRCP 26(e): Supplementation of Disclosures and Responses.
- FRCP 26(f): Meeting of Parties; Planning for Discovery.
- FRCP 26(g): Signing of Disclosures, Discovery Requests, Responses, and Objections.
Let’s look at the main provisions of this Rule.
FRCP 26 a: Required Disclosures
FRCP 26 a 1: Initial Disclosures
With regards to the initial disclosures, FRCP26(a)(1) states that a party must provide to the other party, even without a discovery request, things like:
- Name, address, and telephone number of each individual who is likely to have discoverable information
- A copy of all documents, data compilations, and tangible things that are in the possession of the disclosing party
- The computation of any category of damages claimed by the disclosing party
- Any insurance agreement under which a person carrying on an insurance business may be liable to satisfy part or all of a judgment
There are some categories of proceedings that are exempt from Rule 26 a 1.
A trial lawyer or litigation lawyer must be well aware of such discovery rules, particularly with regards to the initial disclosures, to ensure that he or she complies with the requirements of the Federal Rules of Civil Procedure.
FRCP 26 a 2: Disclosure of Expert Testimony
In accordance with FRCP(a)(2), in addition to the initial disclosures discussed above, a party to a civil lawsuit must also disclose the identity of a person who may be used to present expert evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
FRCP 26 a 3: Pretrial Disclosures
FRCP 26(a)(3) requires that a party disclose and provide information to the other party of evidence it may present at trial, namely:
- Name, address, and telephone number of each witness
- Testimonies that will be presented by means of a deposition
- Identification of documents and exhibits a party expects to offer
FRCP 26 a 4: Form of Disclosures
FRCP 26(a)(4) requires that all disclosures be done in writing, signed by the disclosing party, and served to the other party.
FRCP 26 a 5: Methods to Discover Additional Matter
FRCP 26(a)(5) sets out the different methods of discovery, such as:
- Oral examination
- Written examination
- Written interrogatories
- Production of documents
- Production of things
- Permission to enter upon land for inspection
- Permission to enter into property for inspection
- Physical and mental examination
- Request for admission
FRCP 26 b: Discovery Scope and Limits
FRCP 26(b) relates to the scope of discovery a party may perform and the limits established by the Federal Rules.
FRCP 26 b 1: General Rule
FRCP26(b)(1) represents the general rule stating that a party may obtain discovery regarding any matter to the extent it is relevant to the claim or the defense.
FRCP 26 b 1 particularly states that information that a party may obtain on information that is not privileged, such as information protected by attorney-client privilege.
Information that may be obtain can include:
- Tangible things
- Identity and location of persons having knowledge of discoverable matter
FRCP 26 b 2: Limitations
FRCP 26(b)(2) states that a court has the power to modify and change the limits of the discovery rule and decide on aspects like:
- Number of interrogatories
- Length of depositions
- Limit number of requests under Rule 36
- Frequency and extent of use of the discovery methods
FRCP 26 b 2 provides a legal basis to the judge or a court to ensure that:
- The discoveries are not duplicative
- Not too burdensome
- Not too expensive
- The discovering party had time to obtain the information sought
- The benefits of the discover outweigh its burden or expenses
- The discoveries are reasonable in light of the amount in controversy
FRCP 26 b 3: Trial Preparation: Materials
Under FRCP 26(b)(3), a party may obtain discovery of documents or tangible things from another party or its representative provided that it shows:
- It has a substantial need to get the discovery of the document or thing
- It is unable to get the information by other means without undue hardship
FRCP 26 b 4: Trial Preparation: Experts
FRCP 26(b)(4) states that a party may depose an expert witness whose opinions may be presented at trial.
Should the expert witness intend to file a report, the deposition will take place after the report is provided.
FRCP 26 b 5: Claims for Privilege or Protection of Trial Preparation Material
FRCP 26(b)(5) provides the legal basis to protect privileged information.
If and when a party refuses to provide discoverable information on the basis that it is privileged, the Rule requires that the party describe the nature of the documents, communication, or things withheld without revealing the privileged information.
This will give the other party to assess whether or not it believes the information should be protected or privileged.
FRCP 26 c: Protective Orders
FRCP 26(c) sets out the legal parameters allowing a party to file a motion for protective orders.
Before filing a motion, FRCP 26 c requires the parties attempt to confer in an effort to resolve their dispute without having to have the court intervene.
The objective of the protective order is to ensure a party is protected against:
- Undue burden
- Undue expense
The moving party can seek relief as follows:
- No disclosures to be made
- No discovery to be had
- Specific terms and conditions to be imposed on the discovery or disclosure
- Discovery or disclosure by a different method of discovery
- Limits on certain topics
- With only the presence of a court designated person
- Deposition to be sealed
- Trade secrets not to be revealed
- Protect commercial information
- The parties to simultaneously file specific documents enclosed in sealed envelopes
FRCP 26 d: Timing and Sequence of Discovery
FRCP 26(d) requires that a party to a civil lawsuit seek discovery from any source only after it has conferred as per Rule 26(f).
A party may file a motion seeking discovery if it can be justified that it would be for the convenience of the parties or witnesses, in the interest of justice, or other.
FRCP 26 e: Supplementation of Disclosures and Responses
FRCP 26(e) states that if a party has made disclosures of documents, information, it remains under the duty to supplement or correct the disclosures made or responses given to the other party.
If a party finds out that information disclosed was incomplete or incorrect, or additional information or corrective information may be needed, the disclosing party has a duty to provide supplemental information.
Furthermore, a party is under the duty to seasonably amend prior responses to interrogatories or production of documents, request for admission, to the extent a party learns the responses may have been incomplete or incorrect.
FRCP 26 f: Meeting of Parties; Planning for Discovery
FRCP 26(f) requires that the parties must confer, as soon as practicable to them, to consider the nature and basis of their claims and defenses.
They should also look at the possibility of a settlement or resolution of the case.
FRCP 26(f) also requires that the parties discuss and develop a discovery plan where they cover aspects such as:
- Changes in the timing, form, or requirement for disclosures
- Statement of when the discoveries were made or will be made
- Subjects of discovery
- Possible limitations on discovery
- Orders that may need to be entered by the court under Rule 26(c) or other
FRCP 26 g: Signing of Disclosures, Discovery Requests, Responses, and Objections
FRCP 26(g) requires that every disclosure made be signed by at least one attorney of record in the individual’s name.
Unrepresented parties will sign their own disclosure.
By signing the disclosures, the attorney or individuals certifies that the information is complete and correct at the time it was made, to the best of the signer’s knowledge.
All discovery requests, responses, or objections must be signed by the attorney of record or the unrepresented individual.
By signing the discovery request, responses, or objectives, the attorney or individual certifies that:
- The request is consistent with the rules, warranted by existing law
- Not interposed for any improper purpose (to cause delay or harass a party)
- Not unreasonable or unduly burdensome or expense
Unsigned request, response, or objections shall be stricken from the record.
Federal Rules of Civil Procedure Rule 26 Takeaways
So what is FRCP 26?
What does this rule of civil procedure state?
Let’s look at a summary of our findings.
FRCP 26 Rules Governing Discovery
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