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Federal discovery: Initial disclosures are automatic under the Federal Rules of Civil Procedure

29 October 2011

In my series on discovery, I have been focusing mainly on Texas rules because I live in Houston and thus Texas is the jurisdiction with which I am most familiar, but I thought it prudent to point out that Requests for Disclosure under federal laws are automatic, in juxtaposition with Texas’ procedural rules, whereby requests for disclosure must be made formally in writing. (And in practice, most states are the same as or very similar to the federal rules governing discovery. To learn your own state’s rules, just Google them.)

[Please see Discovery II: What are requests for disclosure?]

I am referring the Federal Rules of Civil Procedure  in general, and R. 26 in particular, part of which states:

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(a) Required Disclosures.

(1) Initial Disclosures.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: [Emphasis mine]

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

This means the parties to federal litigation do not have to wait for the other side to make a request; they simply abide by FRCP R. 26 by providing the answers on their own initiative.

This is at least one difference between many state and federal court procedural rules, presumably in an effort to streamline the discovery process.

FRCP R. 26 goes on to state:

In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D) Time for Initial Disclosures — For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. [Emphasis mine]

Additionally, generally speaking, a party must disclose to the opposing side the identity of any witness who may be used at trial to present evidence under the Federal Rule of Evidence 702, 703, or 705. And, unless otherwise stipulated by the parties or upon order by the court, this disclosure must be accompanied by a written report if that particular witness is one retained to provide expert testimony in the case.

As is the usual custom in both state and federal courts, the disclosures must be in writing, signed, and served on the opposing side.

**Next up we’ll wind up the series with everyone’s favorite: depositions!

Note: I am not an attorney. If you need legal advice, you should consult an attorney licensed to practice law in your state.

**And always remember to check your local rules from the court in which your case has been assigned!

For more info:

Federal Rules of Civil Procedure

Federal Rules of Appellate Procedure

Federal Rules of Evidence

Happy discovering!!

TIP: Try Googling for your state, county, or particular judge’s website. You might be surprised how much information you can find there. You may also call the clerks to ask questions; just keep in mind court clerks are very busy, so it would behoove you to be on your best manners when making inquiries.

For more info: Always remember to check your own state’s rules, and any local rules that may apply! For an overview of civil procedure, go here.

Additionally, this is a simplistic explanation for general purposes; if it were really this cut & dried we’d all be lawyers!

For additional helpful background information, please see “A primer on all the different types of courts

Please see other articles in this series:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure?

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

Sami K. Hartsfield, ACP is a paralegal and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She is also WestlawNext certified. Sami has worked as a law firm Webmaster, law firm social media marketer, and a ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at


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