Changes to Utah Discovery Rules: Initial Disclosures
Utah has new discovery rules that apply in litigation. This post explains how the changes to "Initial Disclosures" will affect a client's case. Prior to 2011, Initial Disclosures were a formality that only applied to cases exceeding $20,000. In reality, little beneficial information was gained from the Initial Disclosures. Sometimes a party would go above and beyond the requirement to provide documents or detailed information. But most often the Initial Disclosures were just a form document that allowed the parties to move forward with discovery. The new rules require more detailed Initial Disclosures. Like before, the names and contact information of people likely to have information must be disclosed. Unlike before, the disclosure must also identify each witness which "the party may call" and "a summary of the expected testimony." This will require much more upfront thought and collaboration with the client than under the prior rules. In many ways this is good because the attorney and client will be required to get a good handle on the case right from the beginning. Gone are the days of filing the case and then waiting a couple months to decide how to manage the case. The next change to Initial Disclosures relates to document disclosure. Under the old rules, relevant documents simply needed to be identified, not actually provided to the other party. It was up to the other party to then request documents. Under the new rules, the disclosing party must actually provide copies of all "documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief (at trial)." A party must produce a copy of any document referred to in its pleadings. Again, this has the potential to really move the case along. In order to disclose the documents which will be used at trial, a party must have a good idea of what the trial strategy will be. The initial work will be greater but there is a potential for faster case resolution. Regarding damages, a party must now disclose its computation of damages and any documents which support that computation. A party must also provide a copy of any agreement which would indemnify the party for a damage award against it. Again, the change here is that not only must information be provided but also documentation to back it up. These disclosures come quickly. The Plaintiff must serve these disclosures within 14 days of the Defendant's Answer. The Defendant then has 28 days to serve its Initial Disclosures. A party may not seek additional discovery until the Initial Disclosures have been made. So how will this change affect the typical client's case? Whether as Plaintiff or Defendant, the client can expect the case to proceed more quickly. Having more information earlier puts the parties in a better position to evaluate either settlement or how to proceed to trial. The potential downside is that a party can expect to spend much more on the case during the first couple weeks than previously. Under the old rules, the only initial cost was to put together the Complaint or Answer and get that filed. Now a party must also assemble and disclose all relevant documents and have their case strategy in place. This will require significantly more time, but the hope is that expedited resolution will outweigh the added upfront expense. Jacob D. Briggs is a partner with the Ogden, Utah, based law firm of Bentley Briggs & Lynch PLLC, practicing in the areas of estate planning, real estate, and commercial litigation.