Local Rule LCvR 26.2: DISCOVERY

LCvR 26.2 DISCOVERY

(a) INITIAL DISCLOSURE REQUIREMENTS.

Unless otherwise provided by the court in its scheduling order, the requirement of Rule 26(a)(1), F.R.Civ.P., for initial disclosure of information are applicable in all cases except for cases exempted by order of the court and in the following categories of proceedings:

(1) an action for review on an administrative record;

(2) a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence;

(3) an action brought without counsel by a person in custody of the United States, a state, or a state subdivision;

(4) an action to enforce or quash an administrative summons or subpoena;

(5) an action by the United States to recover benefit payments;

(6) an action by the United States to collect on a student loan guaranteed by the United States;

(7) a proceeding ancillary to proceedings in other courts;

(8) an action to enforce an arbitration award; and

(9) FOIA actions.

Initial disclosures must be made at or within 14 days after the Fed. R. Civ. P. 26(f) conference, unless the parties agree or the Court orders a different date or unless a party objects during the conference that initial disclosures are not appropriate in the circumstances of the action and states the objection in the Fed. R. Civ. P. 26(f) discovery plan.

Any party first served or otherwise joined after the Fed. R. Civ. P. 26(f) conference must make these disclosures within 30 days after being served or joined unless a different time is set by stipulation or court order. A party must make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

A party that without substantial justification fails to disclose information required by this Rule or by Fed. R. Civ. P. 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Fed. R. Civ. P. 26(e)(2) is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the Court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. These sanctions may include any of the actions authorized under Fed. R. Civ. P. 37(b)(2)(A),(B), and (C), in addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, and may also include informing the jury of the failure to make the disclosure.

Except in categories of proceedings exempted from initial disclosure under Fed. R. Civ. P. 26(a)(1)(E), or when authorized under these rules or by order or agreement of the parties, a party may not seek discovery from any sources before the parties have conferred as required by Fed. R. Civ. P. 26(f).

(b) PRESUMPTIVE LIMITS ON INTERROGATORIES AND DEPOSITIONS.

Whether and to what extent limitations shall be placed on the permitted number of interrogatories and depositions will be determined by the Court in the scheduling order and may thereafter be changed on motion of the parties or the Court's own motion. When the scheduling order sets limits different from those contained in Fed. R. Civ. P. 30(1)(2)(1) and 33(a), the scheduling order shall govern. By order in a particular case, the Court may alter the limits on the number of depositions and interrogatories or the length of depositions under Fed. R. Civ. P. 30. The Court may also limit by order in a particular case the number of requests under Fed. R. Civ. P. 36.

(c) DURATION OF DEPOSITIONS.

A deposition is limited to one day of seven hours, however, the Court may authorize or the parties may agree to different limits on the length of a deposition. The Court must allow additional time consistent with Fed. R. Civ. P. 26(b)(1) and (2), if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance impedes or delays the examination. If the Court finds that the fair examination of the deponent has been frustrated by any impediment or delay, it may impose an appropriate sanction upon the persons responsible, including the reasonable costs and attorney's fees incurred by any parties as a result thereof.

(d) FORM OF RESPONSES TO INTERROGATORIES AND REQUESTS FOR ADMISSION OR PRODUCTION OF DOCUMENTS.

Answers, responses and objections to interrogatories and requests for admissions or for production of documents and motions to compel answers or responses, shall identify and quote each interrogatory or request in full immediately preceding the answer, response or objection thereto.

COMMENT TO LCvR 26.2(a): LCvR 26.2(a) has been amended to conform with the Rules of this Court to the amendments to the Federal Rules of Civil Procedure as amended in December 2000. Also, FOIA actions have been added as item (9). See comment to LCvR 16.3(b). The 1993 amendment permitted local rules to "opt out" of disclosure requirements or to alter its operation. According to the committee notes for the amendment, the 1994 "opt out" provision was a response to opposition to initial disclosure in some districts and permitted districts to tailor their rules to their preference. The purpose of the present amendment is to "restore" national uniformity.

COMMENT TO LCvR 26.2(b): LCvR 26.2(b) has been modified to conform to the amendments to the Federal Rules of Civil Procedure as amended in December 2000. The amendment established a presumptive national limit on the number of depositions and interrogatories. The amendment however, purposefully removed previous permission for local rules that established different presumptive limits on these discovery activities. Limits can, however, be made by court order or agreement in individual actions, but "standing" orders imposing different presumptive limits are not authorized.

COMMENT TO LCvR 26.2(c): LCvR 26.2(c) has been modified to conform to the amendments to Federal Rules of Civil Procedure as amended in December 2000. Partial reasoning for this amendment included removing the "deponent veto," the requirement that the deponent consent to extension of a deposition beyond the presumptive time limitation. Additionally, the committee was guided by concern that overlong depositions resulted in undue costs and delays. The limitation contemplates that there will be reasonable breaks during the day for lunch and other reasons, and that the only time to be counted is the time occupied by the actual deposition.

COMMENT TO LCvR 26.2(d): No change appears to be intended by amendment to the Fed. R. Civ. P., however, discovery requests and responses (including depositions, interrogatories, requests for documents or to permit entry upon land, and requests for admission) must not be filed until they are used in the proceeding or the Court orders filing.