In civil proceedings, such as a claim for personal injury or wrongful death, there are many formal processes that your attorney will execute in preparation for a trial. Disclosure refers to the procedure of revealing (disclosing) evidence among the parties. Discovery refers to the overall process of revealing (sharing) information that either party has in their possession, which is necessary for the preparation of a trial. One party may make a request for discovery when seeking this information.
The Federal Rules of Civil Procedure (FRCP) has a requirement that an initial disclosure be made to other parties regardless of whether a request for discovery has been made. This includes the following:
- The name and contact information of any person likely to have information to disclose that could be used in proving a claim or supporting a defense. It should also include the general topic (subject) of the information that the party could disclose.
- Either copies of documents or location(s) where documents or electronic information may be found that a party may use in proving a claim or supporting a defense. An exception exists if the information would be used exclusively for impeachment.
- A list of quantified damages claimed, unless the information is privileged or shielded from disclosure. In a personal injury action, this would include the type of injuries incurred and the severity.
- Any related insurance documents if an insurer may potentially be liable for paying a judgment or award.
Items Exempt from Initial Disclosure
- Actions for review on administrative records
- Actions of forfeiture on property
- Requests relating to unlawful detention (habeas corpus) or challenges to sentences or convictions
- Actions from a person in federal or state custody without an attorney
- Actions for enforcement or to quash a subpoena or summons
- Federal actions for the recovery of payments of benefits
- Actions for collection of student loans
- Proceedings from another court
- Actions for enforcement of awards for arbitration
Timing of Initial Disclosures & Witnesses
Generally, these initial disclosures are to be made within 14 days after a Rule 26 meeting unless otherwise specified by a court. Parties entering an action after a Rule 26 conference, have 30 days to disclose. Any witnesses or experts that a party may use during a trial should also be disclosed according to individual court orders.
Expert witnesses must sign a statement containing a summary of their testimony, supporting exhibits, their credentials, and other recent cases they were expert witnesses in. Unless a court order states to the contrary, these expert disclosures should be made 90 days prior to the scheduled date for trial. Evidence that will be used to rebut information that another party has disclosed should be completed within 30 days from when that information was disclosed.