Local Rule 7026-1: DISCOVERY

RULE 7026-1 DISCOVERY

(A) Objections to be in Writing: All objections to interrogatories, depositions, requests or applications under FRBP 7026 through FRBP 7037, as well as all motions and replies thereto concerning discovery matters, shall be in writing. If time does not permit the filing of a written motion, the Court may waive this requirement.

(B) Objections to Discovery Process: An objection to any interrogatory, deposition, request or application under FRBP 7026 through FRBP 7037, shall be served within 14 days after service of the interrogatory, deposition, request or application, unless otherwise ordered by the Court. Any such objection shall be specific and the reasons for the objection shall be stated. Any such objection shall not extend the time within which the objecting party must otherwise answer or respond to any discovery matter not specifically objected to.

(C) Motions to Compel: After a discovery request is objected to or not timely complied with, and if not otherwise resolved, it is the responsibility of the party initiating discovery to place the matter before the Court by a proper motion pursuant to FRBP 7037, to compel an answer, production, designation or inspection. Such motion must be accompanied by a memorandum as required by LBR 9013-1(F).

(D) Other Discovery Motions: A motion for a protective order pursuant to FRBP 7026 or a motion for an order compelling disclosure or discovery pursuant to FRBP 7037, or a motion to compel physical or mental examination pursuant to FRBP 7035, shall be accompanied by a memorandum as required by LBR 9013-1(F).

(E) Replies to Discovery Motions: Replies to discovery motions mentioned in paragraphs (C), (D) and (I) of this Local Bankruptcy Rule shall be filed within 14 days after service of the motion and memorandum unless otherwise ordered by the Court. Responses, if any, to all other discovery motions also shall be filed within 14 days.

(F) Compliance with Discovery Orders: After the Court has ruled on a discovery motion, any answer, production, designation, inspection or examination required by the Court shall be completed within 14 days after the entry of the order of the Court, unless otherwise ordered by the Court.

(G) Failure to Comply with Order: Should a party fail to comply with an order of the Court concerning discovery motions, it is the responsibility of the party objecting to such failure to comply to place the matter before the Court by a proper motion for supplementary relief pursuant to FRBP 7037. Such motion must be accompanied by a written memorandum as required by LBR 9013-1(F).

(H) Consultation Among Counsel: Counsel are encouraged to participate in pretrial discovery conferences in order to decrease, in every way possible, the filing of unnecessary discovery motions. No motion concerning discovery matters may be filed until counsel shall have explored with opposing counsel the possibility of resolving the discovery matters in controversy. The Court will not consider any motion concerning discovery matters unless the motion is accompanied by a statement of counsel that a good-faith effort has been made between counsel to resolve the discovery matters at issue.

(I) Extensions: Depending upon the facts of the particular case, the Court in its discretion may, upon appropriate written motion by a party, allow an extension of time in excess of the time provided by the Federal Rules of Civil Procedure, these Local Bankruptcy Rules, or previous court order, within which to respond to or complete discovery or to reply to discovery motions. Any agreement between counsel relating to any extension of time is of no force or effect; only the Court, after appropriate motion directed thereto, may grant an extension of time. Unless otherwise specifically provided, such extension will be upon the specific condition that, regardless of what may be divulged by such discovery, it will not in any manner alter the schedule of dates and procedure previously adopted by the Court in the particular case.

(J) Sanctions: Should any party or the party's attorney fail to comply with any of the provisions of this Local Bankruptcy Rule, or otherwise fail or refuse to meet and confer in good faith in an effort to narrow the areas of disagreement concerning discovery, sanctions provided by FRBP 7037 may be imposed.

(K) Applicability to Contested Matters: See LBR 9014-1.

(L) Expert Disclosure

(1) Agreement upon Disclosure: Counsel are encouraged to agree upon the sequence and timing of the expert disclosures required by FRBP 7026. All such agreements must be in the form of a consent order entered by the Court.

(2) Timing of Mandatory Disclosure: Absent such a consent order, or unless otherwise ordered, the disclosures required by FRBP 7026 shall be made as follows:

(a) Adversary Proceedings: In adversary proceedings, the disclosures required by FRBP 7026 shall first be made by the plaintiff not later than 60 days before the date set for completion of discovery; then by the defendant 30 days before the date set for completion of discovery. Within 14 days after defendant's disclosure, plaintiff shall disclose any evidence that is solely contradictory or rebuttal evidence to the defendant's disclosure.

(b) Contested Matters Except Relief from Stay: LBR 9014-1 generally excludes the application of FRBP 7026 in contested matters. Pursuant to LBR 9014-1, however, exceptions to this general rule may be made on order of the Court. When so ordered, the disclosures required by FRBP 7026 shall be made by the movant or applicant, as the case may be, within 30 days prior to the hearing date; then by the respondent or objecting party, on the later of 14 days after the movant or applicant presents the required disclosures, or on the date that a response to the motion or application is due.

(c) Relief from Stay: LBR 9014-1 generally excludes the application of FRBP 7026 in relief from stay matters. Pursuant to LBR 9014-1, however, exceptions to this general rule may be made on order of the Court. When so ordered, the disclosures required by FRBP 7026 shall be made by the parties within 14 days prior to the date set for final hearing on the motion. The parties shall disclose 7 days after disclosure any evidence that is solely contradictory or rebuttal evidence to each other's disclosure.

(3) Failure to Comply: Any party who fails to comply with these mandatory disclosure requirements may, at the court's discretion, be prohibited from using the undisclosed expert testimony at trial.

(4) General Provisions: For purposes of this Local Bankruptcy Rule, counterclaim-plaintiffs, cross-plaintiffs and third-party plaintiffs shall be plaintiffs as to all elements of the counterclaim, cross-claim and third-party claim. Answers to interrogatories directed at clarification of the written reports of expert witnesses disclosed pursuant to FRBP 7026 shall be due 14 days after service, unless otherwise ordered.

(M) Filing With Court: Unless otherwise permitted by the Court, on its own initiative or for good cause shown by motion, discovery materials, depositions upon oral examination and upon written questions, interrogatories, requests for documents, requests for admission and answers and responses or objections to such discovery requests shall not be filed with the pleadings or papers in any case or proceeding. When specific discovery material appropriately may support or oppose a motion, the specific discovery material in question shall be appended as an exhibit to the motion, or in response thereto, without having been previously filed. Discovery material otherwise permitted to be used at trial may be properly so used, if otherwise admissible, without having been previously filed.

Comments The purpose of this change is to resolve the apparent conflict between 7026-1(D) and 7026-1(P) by noting that the objection is to be served rather than filed within fifteen days after the initial discovery request. If approved, it would bring the rule into compliance with the corresponding local rule for the U.S. District Court.

Paragraph (O) is new and incorporates herein the same rule as in the U.S. District Court for the Eastern District of Virginia. [Changes effective 1/1/97.]

The original language of Paragraphs (A), (B) and (N) opting out of certain provisions of the Federal Rules of Bankruptcy Procedure have been eliminated since such opt out no longer is permitted under the national rules. Rules 26(a)(1), (3) and (4), (b)(1)-(2), (d) and (f), 5(d), 30(d) and 37(c) of the Federal Rules of Civil Procedure were amended effective December 1, 2000. Original Paragraphs (A) and (B) have been repealed. Original Paragraphs (C) through (K) have been redesignated Paragraphs (A) through (I). Original Paragraph (L), (dealing with unnecessary discovery motions or objections) which was repealed effective February 1, 2000, has been eliminated. Original Paragraphs (M) through (P) have been redesignated Paragraphs (J) through (M). The heading and text to original Paragraph (N) (dealing with opt-out provisions) have been eliminated and a new Paragraph (K), which references new LBR 9014-1, has been substituted to conform to F.R.Civ.P. 26. [Changes effective 12/1/00.]

7026-1(L) This paragraph is repealed since it was felt that the paragraph no longer is needed. [Change effective 2/1/00.]

7026-1(L)(2)(b) Under the current rule provision, the respondent or objecting party may not have had an affirmative duty to make the required disclosures if the movant or applicant did not make any such disclosures. The amended rule provision makes clear that the expert disclosure requirement of a respondent or objecting party is independent of the requirement imposed on a movant or applicant. [Change effective 3/1/01.]

7026-1(L)(2)(b) and (c) These changes result from an amendment to LBR 9014-1, which added FRBP 7026(a)(2) to those subdivisions of Rule 7026 that are excluded generally from application in contested matters and in relief from stay matters. [Change effective 7/1/02.]

7026-1 Time-computation adjustments have been made, as needed, to conform to a revision to the Federal Rules of Bankruptcy Procedure that take effect December 1, 2009. A technical change has been made at paragraph (E). Stylistic changes have been made to the text of the LBR as well. [Changes effective 12/01/09.]

7026-1(C), (D), (G) These rule provisions are amended to conform to the amendments made to LBR 9013-1. [Changes effective 08/01/23.]