MANDATORY DISCLOSURES

Parties to litigation are generally required to disclose the legal theories upon which their claims and defenses are based, as well as the evidence that they intend to introduce at trial to support those legal theories.  Rule 26.1 (a) of the Arizona Rules of Civil Procedure state:

(a) Duty to Disclose; Disclosure Categories. Within the times set forth in Rule 26.1(f) or in a Scheduling Order or Case Management Order, each party must disclose in writing and serve on all other parties a disclosure statement setting forth:

(1) the factual basis of each of the disclosing party's claims or defenses;

(2) the legal theory on which each of the disclosing party's claims or defenses is based, including–if necessary for a reasonable understanding of the claim or defense–citations to relevant legal authorities;

(3) the name, address, and telephone number of each witness whom the disclosing party expects to call at trial, and a description of the substance–and not merely the subject matter–of the testimony sufficient to fairly inform the other parties of each witness' expected testimony;

(4) the name and address of each person whom the disclosing party believes may have knowledge or information relevant to the subject matter of the action, and a fair description of the nature of the knowledge or information each such person is believed to possess;

(5) the name and address of each person who has given a statement–as defined in Rule 26(b)(3)(C)(i) and (ii)–relevant to the subject matter of the action, and the custodian of each of those statements;

(6) the anticipated subject areas of expert testimony;

(7) a computation and measure of each category of damages alleged by the disclosing party, the documents and testimony on which such computation and measure are based, and the name, address, and telephone number of each witness whom the disclosing party expects to call at trial to testify on damages;

(8) the existence, location, custodian, and general description of any tangible evidence, documents, or electronically stored information that the disclosing party plans to use at trial, including any material to be used for impeachment;

(9) the existence, location, custodian, and general description of any tangible evidence, documents, or electronically stored information that may be relevant to the subject matter of the action; and

(10) [a copy of] any insurance policy, indemnity agreement, or suretyship agreement under which another person may be liable to satisfy part or all of a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment . . . .

AZ ST RCP Rule 26.1(a) (emphasis added)

These disclosures are generally required to be made within 30 days of the filing of the defendant's answer. Thereafter, the parties have a continuing duty to supplement or amend their disclosures through trial.

The above-described disclosure process comes from Rule 26.1 of the Arizona Rules of Civil Procedure. There is a different process that applies to litigation in federal courts, but many of the same principles apply.

The above-described mandatory disclosure process was pioneered by Arizona courts in the early 1990's under the leadership of our then chief justice of the Arizona Supreme Court, Thomas Zlaket. Since then, the spirit of the “Zlaket Rules” as they came to be called, has infused the rules of civil procedure in federal courts, and many other state courts around the country. The purpose of these rules was to prevent “trial by ambush” and abusive discovery practices. After nearly 30 years, I would have to say, and I believe that most of my colleagues would agree, that the Zlaket Rules and their progeny have been a resounding success.

WRITTEN DISCOVERY

The parties may propound a limited number of written discovery requests upon one another, including the following types:

• Requests for Production: To obtain tangible evidence, documents, or electronically stored information from opposing parties in litigation.
• Requests for Admission: To require an opposing party to either admit or deny certain assertions. For example: “Admit that you did not inspect the brakes on your semi-tractor trailer truck in the 90 days preceding the Incident.”
• Uniform Interrogatory: Uniform interrogatories are standardized questions that the parties can require one another to answer. For example: “At the time of the alleged accident, was the driver of said vehicle engaged in the business of any other person or entity? ___ If so, please state the name and address of such other person or entity.”
• Non-uniform Interrogatory: I have always thought this was a funny bit of legalese. A “non-uniform interrogatory” is simply a question. The rules of discovery allow you to submit a certain number of written non-uniform interrogatories (i.e., questions) to opposing parties, to which they are required to respond.

Since the advent of mandatory disclosure, described above, the importance of written discovery has diminished. Relevant information is generally already subject to mandatory disclosure without the need for a specific written discovery request. However, written discovery still has its place.

In my opinion, written discovery is not as powerful a tool as it seems to be. The idea of forcing your opponent into responding to your perfectly-crafted questions is so alluring, but the reality is usually much less satisfying. Responses to written discovery often consist of baseless objections and other responses that are barely responsive at all. At that point, if you want something more or different, then your only real leverage is to file a motion with the court. But there are several problems with this approach: 1) Judges hate receiving these kinds of motions. I have heard many judges say that dealing with discovery disputes is the worst part of their job. So if you want to make your judge angry, a good way to do it is to file a discovery motion. 2) Discovery motions can easily consume a large portion of your most precious resource — time.  Generally, you are better off investing your time into other aspects of your case, such as depositions, as I will discuss next.

The philosophies, strategies, and tactics I've outlined above are the principles that guide our actions at Cluff Injury Lawyers. I've outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them. 

Author: Brigham Cluff