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and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - firstname.lastname@example.org - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Wednesday, April 28, 2004
Beyond Rule 26 Beyond Rule 26
Most litigators and litigation paralegals are familiar with good 'ol Rule 26. That's the one that forces the litigants to be honest. It is the court's truth serum. Without this rule, parties would hide more balls than Minnesota Fats. If Bill Clinton followed Rule 26, we would have adopted Lewinsky as a noun, verb and adjective months or perhaps years before we eventually did.
Those not familiar with Rule 26 would be unaware that this rule requires voluntary initial disclosures. The Federal Rules of Civil Procedures now is home to this bastion of honesty, however nearly all State and Federal Administrative Agencies have adopted a similar statue. In fact, most call it "Rule 26" just to be consistent with the numerical schemes.
Graucho Marx used to give away a whopping fifty dollars to anyone who correctly said the "magic word" on his comedy variety show. The audience would be clued into the word of the day, say 'Pelican' and if the guest on the show just so happened to say 'Pelican' during the course of his or her appearance, the neon sign would lower, bells would sound and Graucho would stoop into his duck walk and give an extra chomp to his stogie.
Prior to the days of Rule 26, discovery not unlike the Graucho Marx show. If a litigant knew that a particular document was germane to the dispute and was not privileged, that litigant would hesitate to simply 'hand it over' to the opposition. Why make their job any easier, right?
This had the effect of bringing about a 'guessing game' of sorts. Keeping within the Marx brother vein, let's say that the defendant was a manufacturer of funny, plastic novelty glasses with an attached plastic nose and fuzzy black moustache. Let's further assume that the moustache is said to cause an unusual skin irritation that caused those who wore the gag costume accessory to develop a severe rash. If the Defendant had ran studies on the possible chemical skin reactions of the material that makes up the moustache and the studies showed that there was a high likelihood of irritation, wouldn't the plaintiff want to get his or her hands on that study? Back in the day, if the plaintiff did not specifically come right out and demand that document by name via an RFP ("Please produce any and all studies or surveys pertaining to any human reaction to the moustache fibers....) then it simply was not offered up by the defendant. This obviously enabled a defendant (and a plaintiff for that matter) to quite easily keep out relevant, non-privileged information simply because the requesting party never said 'the magic word.'
Today, with the Rule 26 early disclosure requirement, "Every party MUST disclose the following information WHETHER OR NOT REQUESTED THROUGH FORMAL DISCOVERY:" The rule goes on to specify that contact information of individuals "with discoverable information," documents, insurance agreements, data compilations (thus opening up the rule to e-discovery) and other such vital information MUST be disclosed.
In 2001, when Prudential Insurance company did not voluntarily disclose a policy rider that was obviously damaging to their position, the court imposed a one million dollar sanction for violating Rule 26. Wouldn't want a piece of that rock...
Those that follow Rule 26 or use Rule 26 to pressure the other side into being forthright may or may not be familiar with the intricacies of the rule.
For example, did you know that Rule 26 does NOT require the disclosure of several types of documents? Yep, pursuant to FRCP 26(a)(1)(A)-(D), mandatory disclosure is NOT applicable in cases pertaining to actions to review an administrative record, post conviction relief applications, pro-se habeas corpus petitions, actions to quash an administrative summons or subpoena, actions by the US to recover benefit payments or student loans and actions to enforce an arbitration award. These situations call out to Graucho and invite a new episode of 'say the secret word.'
Also, there seems to be a good amount of confusion as to when information must be disclosed. The Rule indicates in sub section (a)(1)(E) that "Unless a different time is set by stipulation or court order, the initial disclosures mandated by FRCP, Rule 26(a)(1) must be made at or within fourteen days after the discovery conference of parties required by FRCP 26(f).... for parties joines or served after the FRCP 26(f) conference, disclosures are required within thirty days after the party is severed or joined."
Now here's where the e-mail and EDD becomes wedded to the rule. The statute goes on to dictate that "A party must make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the insufficiency of another party's disclosures or because another party has not made its disclosures."
Well, this obligates any litigant to check them e'mails and Word and WordPerfect files along with spreadsheets, PowerPoints and any other electronically stored document that may fall into the gambit of this definition. If only Graucho would have used "deduplication" as the word of the day...
Additionally, FRCP 26 is further defined and narrowed by sub section (a)(4) which obligates no party to disclose if a meet and confer is ordered by the court which has not yet taken place. Many (if not most) courts that follow Rule 26 will have a meet and confer requirement.
The final and one of the most pain staking requisites of Rule 26 is comes with section (d) which requires parties to 'continually supplement' prior disclosures or discovery responses. In the electronic world, this will require a well oiled litigation readiness strategy and great attention to detail.
OK, I cannot leave this article without one Graucho quotation. There are so many to choose from, but I chose this one as it pertains to the judicial process...
"I was married by a judge. I should have asked for a jury" - Graucho Marx posted by Alexander | 8:56 PM