Consumer protection lawsuits in federal court: part 10 — initial disclosures


After the parties have met to prepare a proposed scheduling order, then discovery begins and it starts with “initial disclosures” in a federal consumer protection lawsuit.

What are initial disclosures?
These include information and documents that each side gives to each other, without being asked. Almost all other forms of discovery only require a response when the other side asks you for documents or information.

But initial disclosures are given automatically.

What are some examples of initial disclosures?
**List of witnesses
**Documents that support a claim or a defense
**Documents that show damages
**Copies of insurance policies that can pay for a judgment in the case
Why do we have initial disclosures?
The idea is to make sure that there is a basic level of information and documents given to each side. This helps the parties evaluate the case and see if the case is one to settle.

If it is not going to settle right away, then the initial disclosures help the parties to see what is in dispute so that they can do the rest of the discovery process in the best and most efficient way possible.

When are initial disclosures due?
Normally these are given to each other 14 days after the parties meet to discuss deadlines. But often the scheduling order will say something different so it does vary in each case.

In our next article we’ll discuss an “interrogatory” which is a common form of written discovery.

We hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we’ll be glad to help you any way we can.


John Watts

PS — Here is the relevant text of the Rule 26 of the Federal Rules of Civil Procedure that apply to initial disclosures in case you would like to read this directly from the source:

(a) Required Disclosures.

(1) Initial Disclosure.

(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 from 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 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.

(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.

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