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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:

     (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.

 

(B) Proceedings Exempt from Initial Disclosure.  The following proceedings are exempt from initial disclosure:

     (i) an action for review on an administrative record;

     (ii) a forfeiture action in rem arising form a federal statute;

     (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

     (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

     (v) an action to enforce or quash an administrative summons or subpoena;

     (vi) an action by the United States to recover benefit payments;

     (vii) an action by the United States to collect on a student loan guaranteed by the United States;

     (viii) a proceeding ancillary to a proceeding in another court; and

     (ix) an action to enforce an arbitration award.

 

(C) Time for Initial Disclosures – 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 object in, 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.

 

(E) Basis for Initial Disclosure; Unacceptable Excuses.  A party must make its initial disclosures based on the information then reasonably available to it.  A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.

 

(2) Disclosure of Expert Testimony.

(A) In General.  In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

 

(B) Written Report.  Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report – prepared and signed by the witness – if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.  The report must contain:

     (i) a complete statement of all opinions the witness will express and the basis of reasons for them;

     (ii) the data or other information considered by the witness in forming them;

     (iii) an exhibits that will be used to summarize or support them;

     (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years.

(v) a list of all other cases in which, during the previous 4 years the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

 

(C) Time to Disclose Expert Testimony.  A party must make these disclosures at the times and in the sequence that the court orders.  Absent a stipulation or a court order, the disclosures must be made:

     (i) at least 90 days before the date set for trial or for the case to be ready for trial; or

(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party’s disclosure.

 

(D) Supplementing the Disclosure.  The parties must supplement these disclosures when required under Rule 26(e).

     

(3) Pretrial Disclosures.

(A) In General.  In addition to the disclosure required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:

(i) the name and, if not previously provided, the address and telephone number of each witness – separately identifying those the party expects to present and those it may call if the need arises;

(ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and

(iii) an identification of each document or other exhibit, including summaries of other evidence – separately identifying those items the party expects to offer and those it may offer if the need arises.

 

(B) Time for Pretrial Disclosures; Objections.  Unless the court orders otherwise, these disclosures must be made at least 30 days before trial.  Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objections, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii).  An objection not so made – except for one under Federal Rule of Evidence 402 and 403 – is waived unless excused by the court for good cause.

    (4) Form of Disclosures.

Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.