Local Rule Rule 26.1: DISCOVERY

Rule 26.1 DISCOVERY

(a) Formal Discovery Shall Not Commence Until Initial Disclosure Served. It is the policy of this District that discovery shall be open, full and complete within the parameters of the Federal Rules of Civil Procedure. Except as authorized under Fed. R. Civ. P. 26(d), formal discovery, including oral depositions, service of interrogatories, requests for production of documents and things, and requests for admissions, shall not commence until the parties have complied with Fed. R. Civ. P. 26(a)(1).

(b) Stay of Discovery. Unless otherwise ordered, the filing of a dispositive motion or motion for protective order, prior to the filing of all responsive pleadings, shall stay the requirement to exchange initial disclosures as required by Fed. R. Civ. P. 26(a)(1) and all other formal discovery until a ruling on the motion has been made.

(c) Discovery of Electronically Stored Information. Prior to a Fed. R. Civ. P. 26(f) conference, counsel should confer with their clients about electronically stored data system(s), including its operation, storage, retrieval and ability to search. Counsel shall review the client's electronically stored information to identify, preserve and disclose (as required under the Rules of Discovery) any contents and format which may be used to support claims or defenses.

(1) Duty to Notify. A party seeking discovery of electronically stored information shall notify the opposing party immediately, but no later than the Fed. R. Civ. P. 26(f) conference, and clearly identify the categories of information which may be sought.

(2) Duty to Meet and Confer. The parties shall meet and confer regarding the following matters during the Fed. R. Civ. P. 26(f) conference:

(A) Electronically stored data/information (in general). Counsel shall attempt to agree on steps the parties will take to segregate and preserve electronically stored data/information;

(B) Email information. Counsel shall attempt to agree as to the scope of email discovery and attempt to agree upon an email search protocol. This should include an agreement regarding inadvertent production of privileged email messages;

(C) Deleted information. Counsel shall confer and attempt to agree whether or not restoration of deleted information may be necessary, the extent to which restoration of deleted information is needed, and who will bear the costs of restoration; and

(D) Back-up data. Counsel shall attempt to agree whether or not back-up data may be necessary, the extent to which back-up data is needed, and who will bear the cost of obtaining back-up data.

(d) Discovery Disclosures, Requests and Responses.

(1) Initial disclosures (self-executing routine discovery exchange) pursuant to Fed. R. Civ. P. 26(a)(1), interrogatories under Fed. R. Civ. P. 33 and answers thereto, requests for production or inspection under Fed. R. Civ. P. 34, requests for admissions under Fed. R. Civ. P. 36, and responses thereto, shall be served upon other counsel or parties, but shall not be filed. Certificates or notices of compliance are not required and shall not be filed. If relief is sought under Fed. R. Civ. P. 26(c) or 37 and authorized by the Court to be filed under Local Rule 37.1(b), copies of the disputed portions of the interrogatories, requests, answers or responses shall be filed contemporaneously with any such motion.

(2) Parties may agree to produce any or all documents electronically, rather than by other means.

(e) Discovery of Expert Testimony.

(1) All expert designations shall be filed.

(2) The parties are limited to the designation of one expert witness to testify for each particular field of expertise, absent a showing that complex issues necessitate expert witnesses with narrow, specialized areas of expertise within a larger general field.

(3) A party may depose any person who has been identified and designated as an expert witness pursuant to Fed. R. Civ. P. 26(a)(2).

(4) At the time of the initial pretrial conference, the Court shall, unless good cause appears to the contrary:

(A) establish deadlines by which any party shall designate expert witnesses under Fed. R. Civ. P. 26(a)(2); and

(B) require the expert witness designation(s) to indicate in reasonable detail the areas and fields of expertise and the qualifications of the witness as an expert in said areas and fields.

(5) The disclosure of expert witness testimony shall comply with Fed. R. Civ. P. 26(a)(2). In addition, the party designating the expert witness shall set forth all special conditions or requirements the designating party or the expert witness will insist upon with respect to the taking of his or her deposition, including the amount of compensation the expert witness will require and the rate per unit of time at which the compensation will be payable. In the event counsel is unable to obtain such information to include in the designation, the efforts to obtain the same and the inability to obtain such information shall be set forth in the designation.

(A) In the event a designation of an expert witness fails to set forth the compensation to be paid by a party for the deposition of the expert, or fails to set forth the efforts to obtain such information for designation, any adverse party shall be entitled to depose such witness at the fee provided by the Federal Rules of Civil Procedure.

(B) In the event the amount and rate of the compensation is designated for the expert witness, and the deposition of that expert witness is taken without further action, discussion or agreement between counsel, then the amount described in the designation shall be paid by the party or parties taking the deposition.

(C) Nothing shall prevent the parties involved from agreeing to other terms and conditions and amount of compensation following the designation.

(D) In all cases where there is a dispute as to the proper compensation or other conditions relative to the taking of an expert discovery deposition, or an inability to obtain information concerning compensation, a party may file a motion with the Court pursuant to Fed. R. Civ. P. 26(b)(4) and (c) or Fed. R. Civ. P. 45(d). The Court will, thereafter, issue its order setting forth the terms, conditions, protections, limitations and amounts of compensation to be paid by the party taking the deposition.