The objective of the changes to the Utah Rules of Civil Procedure regarding discovery is to produce quicker and cheaper outcomes. The Advisory Committee notes that “the focus is on moving quickly and efficiently to the disposition of the merits of the case." A prior blog post discussed how changes to the Initial Disclosure requirements will further this goal. This post addresses the faster deadlines and how these changes will impact the average case.
Under the old rules, the period for discovery was presumptively set to expire 240 days after the first answer was filed. In my experience, the parties almost always ended up stipulating to an even longer period of time, and sometimes multiple extensions followed. The old rules fostered a slow, methodical pace of litigation. While this was effective in “getting down to the facts," it was not effective in fostering the speedy and efficient resolution of cases.
The new rules put each case on a fast track to resolution. A party may commence discovery one it has satisfied its Initial Disclosure obligation. The amount of standard discovery available and the deadlines to complete that discovery vary depending on how much is at stake in the litigation. The amount at stake is determined by looking at the total of all monetary damages sought by all parties. Cases will then fall into one of three tiers, with specific limitations and deadlines for standard discovery. For a table of these limitations and deadlines, see http://www.utcourts.gov/resources/rules/urcp/urcp026.html or http://www.bentleybriggs.com/2011/11/utah-discovery-rule-changes-deadlines/ The deadlines stated are calculated from the date the first defendant’s first disclosure is due (which is 28 days after the Plaintiff’s first disclosure is made, which must be no later than 14 days after the Defendant files an answer).
In the smallest cases (those under $50,000), discovery moves quickly and is very limited. Only three hours of deposition are allowed, no written interrogatories are allowed, and only five each of requests for production of documents and requests for admission are allowed. These limitations are in stark contrast to the broad scope of prior discovery practice.
If discovery is required in excess of the limitations above, “extraordinary discovery" can be obtained either by stipulation or by motion. If by stipulation, the parties must submit a stipulated statement that the proposed additional discovery is “necessary and proportional" and that each party “has reviewed and approved a discovery budget." See Rule 26(c)(6). This discovery budget is a document signed by the client that approximates the cost of the proposed additional discovery.
If the extraordinary discovery cannot be obtained by stipulation, a motion is filed by a party. The filing party must certify that the additional discovery is necessary and proportional and that a discovery budget has been approved by the client. The moving party must also certify that it has attempted in good faith to confer with the other party to achieve a stipulation for additional discovery.
The clear result of these changes will be to accelerate the resolution of cases. Litigation should also cost less on the whole. However, whereas before the cost to the client was spread over many months or even years, the expedited pace will mean that the client incurs greater cost in the first few months of litigation. The hope is that this upfront cost will translate into a greater likelihood of resolving the case quickly.