Initial disclosure

From LegalLanding

FRCP Rule 26 requires initial disclosure prior to the commencement of discovery.

Parties must turn over “core materials’ before formal discovery begins. Each party must disclose witnesses and documents it may use to support its claims or defenses. This does not include information harmful to the party’s position or information that will be used solely for impeachment. The rule also requires disclosure of insurance policies so that both sides are able to make a realistic appraisal of the case and base their settlement and litigation strategies on knowledge, not speculation.

Rule 26(a) requires parties to disclose information without being asked. The purpose is to speed up discovery and reduce the cost, on the logic that everybody will ask for these materials in their first interrogatories or request for production of documents. When Rule 26(a) was introduced there were many complaints from those who had been ingrained by the adversary system. Justice Scalia argued in his dissent that the rule would force lawyers to use their skills in the service of the adversary. For the first few years, certain districts were allowed to opt out of the rule at a judge’s discretion. The opt-out provision was later removed after it was found that the adversary system did not actually fall apart.

FRCP Rule 37(c)(1) forbids the use of materials that should have been disclosed but were not (this applies to discovery depositions as well).

Many states' rules of civil procedure do not contain an initial disclosure provision like that of Federal Rule 26.