Discovery Rule 26 — A Practitioner’s Guide to State and Federal Rules
By Ed Abel and Lynn B. Mares

With pretrial discovery we have generally eliminated “Perry Mason moments” at trial, but parties are still reluctant to give up too much too soon. The discovery rules prod us to disgorge facts early and often if the matter is relevant to either a claim or defense in the action and is either admissible or “reasonably calculated to lead to the discovery of admissible evidence.”1 The debate continues over what is “reasonably calculated” to lead to evidence for trial.

In discovery, we try to uncover the true facts and circumstances rather than conceal them.2 We are searching for the truth based on full revelations.3 “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”4 Although the theory is clear, the practice is not always. We have found the Federal Advisory Committee Notes very instructive in fleshing out the rules.

INITIAL DISCLOSURES IN FEDERAL COURT

Following the successful experience of courts in Canada and the United Kingdom, Fed.R.Civ.P. 26(a) gives discovery a jump-start, requiring disclosure of some important information without waiting for a request from the adversary, thus eliminating the paperwork formerly involved in making requests. Interestingly, the 1993 Advisory Committee Notes stress the initial disclosures are limited to “disputed facts”: “There is no need for a party to identify potential evidence with respect to allegations that are admitted.”5 As a practical matter, however, it is usually easier to list all potential evidence, whether disputed or not.

At or within 14 days after the Rule 26(f) conference, parties in most cases have a duty, without waiting for a request, to make “initial disclosures,” including identification of potential witnesses in chief (non-impeachment type witnesses) and a description of what discoverable information they might have. The short but informative description should enable the other side to know if they will need to take the person’s deposition. We need to avoid the vague “will testify about liability” designations. What does the person know about liability?

Parties must provide copies or descriptions of all documents, electronic information and tangible items they may use to support their claims or defenses or to deny the other party’s allegations — again, non-impeachment type evidence. “Use” is an important word for the 2000 committee, which defines it as

… any use at a pretrial conference, to support a motion, or at trial. The disclosure obligation is also triggered by intended use in discovery, apart from use to respond to a discovery request; use of a document to question a witness during a deposition is a common example. … A party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use.6

The 1993 committee explained:

[A]n itemized listing of each exhibit is not required, the disclosure should describe and categorize, to the extent identified during the initial investigation, the nature and location of potentially relevant documents and records, including computerized data and other electronically-recorded information, sufficiently to enable opposing parties 1) to make an informed decision concerning which documents might need to be examined, at least initially, and 2) to frame their document requests in a manner likely to avoid squabbles resulting from the wording of the requests.7

It is important to know that complying with the requirement to list and describe a document does not constitute a waiver to object to its production; a party may still object to producing documents protected by privilege, attorney work-product or those that are burdensome and expensive to produce.8 We will discuss privilege logs below.

Rule 26(a)(1)(C) requires providing a calculation of damages in which the nature and extent of injuries are to be provided:

This obligation applies only with respect to documents then reasonably available to it and not privileged or protected as work product. Likewise, a party would not be expected to provide a calculation of damages which, as in many patent infringement actions, depends on information in the possession of another party or person.9

Rule 26(a)(1)(E) states initial disclosures must be based on information reasonably available to the party even if it has not fully completed its investigation or even if it objects to the completeness of another parties’ disclosures. As explained in the 1993 committee notes, “The rule does not demand an exhaustive investigation at this stage of the case, but one that is reasonable under the circum- stances …”10 Plaintiffs will probably have conducted a more complete investigation by the time discovery is due, but defendants have to get up to speed pretty quickly to identify potential evidence.

Disclosure of expert opinions is an important feature of Rule 26(a)(2). Parties must reveal any expert “retained or specially employed” who may be used at trial — including the party’s employees regularly involved in testifying. Unique to the federal rule, the disclosure must be accompanied by a written report containing a complete statement of all opinions, the bases for them, the information considered, any exhibits to be used to support them, a curriculum vitae, a list of publications in the preceding 10 years, fees to be charged and a list of other expert testimony given in the preceding four years. The theory is the report will aid in shortening or maybe eliminating deposition time. A non-retained expert does not have to provide a report. “A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report.”11 Treating doctors are both fact witnesses and experts, but they are not “retained” as contemplated by the rules.

The requirement for an expert report is a significant difference between the Oklahoma and federal rules, although some of the same information may be obtained through interrogatories in state court.12 It has long been our practice not to provide expert reports of any kind since they may be based on incomplete facts until discovery has progressed and all parties have a better understanding of issues. Experts now have to be careful to qualify their statements and make it clear opinions can change if other facts are discovered — even at trial. Evidence rules, 12 O.S. § 2703 and Fed.R.Evid. 703, provide experts may base their opinions on facts or data acquired “at or before the hearing.” It is important for experts to be flexible and to have the ability to change their opinions when warranted by the facts. However, it can understandably cause quite a bit of consternation with an opponent.

The 1993 committee notes make it clear that anything furnished to an expert will be subject to discovery:

Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions — whether or not ultimately relied upon by the expert — are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.13

LIABILITY INSURANCE POLICIES

As part of initial disclosures, Rule 26(a)(1)(D) requires defendants to provide any insurance policy that could satisfy or indemnify part or all of any potential judgment. Knowledge of liability insurance limits is, in our experience, very helpful in resolving cases. A major incentive to file in federal court used to be that one could discover whether there was adequate insurance. The policies are also required under Section 3226(B)(1) — a new development in Oklahoma law.

Prior to 1970 when the federal rule was amended to allow discovery of liability limits, there was substantial controversy over whether it was wise. As stated by the committee,

Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation. It will conduce to settlement and avoid protracted litigation in some cases, though in others it may have an opposite effect. … [D]isclosure does not involve a significant invasion of privacy.14

Since disclosure depends on whether the insurer may be liable, “… an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its claim.”15 However, the insurance application is not discoverable: “The insurance application may contain personal and financial information concerning the insured, discovery of which is beyond the purpose of this provision.”16

SIMILARITY OF FEDERAL AND STATE RULES

After the initial disclosure stage in federal court, Rule 26 is very similar to 12 O.S. §3226. Both allow similar methods: oral or written depositions, written interrogatories and requests for production, requests for admission and physical and mental examinations.

Under the Oklahoma rule, the frequency of using the methods is not limited unless the court sets limits. Rule 26 (b)(2) is more explicit about limiting the amount of discovery permitted so it is not duplicative or burdensome and electronically-stored data may not be discoverable if it is “not reasonably accessible.” According to the 1983 committee notes, the provision

…is intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse. … [It seeks] to oblige lawyers to think through their discovery activities in advance so that full utilization is made of each deposition, document request, or set of interrogatories. … The [rule addresses] the problem of discovery that is disproportionate to the individual lawsuit …17

Interrogatories in Oklahoma state courts are limited to 30 by Section 3233(A) unless the court decides otherwise. That also forces lawyers to plan ahead about what should be discovered through interrogatories as opposed to other methods. Our firm rarely sends interrogatories at all. We find it much more productive to issue requests for production or take depositions of those in the know. We realize attorneys will be heavily involved in answering interrogatories and would prefer getting the information directly from actual witnesses. Interrogatories are useful to get basic information such as names of witnesses, important dates and other factual data.

TRIAL PREPARATION MATERIALS: “WORK PRODUCT”

Work product is protected by both Rule 26(b)(3) and Section 3226(B)(2). If documents and things are specifically prepared by or for a party or its representative (including by an attorney, consultant, surety or indemnitor) in preparation for litigation, opposing parties will not be able to obtain them absent a showing of substantial need. Our opponents cannot have the work we have done if they can, without undue hardship, do a similar thing themselves.

The 1970 committee observed:

Some of the most controversial and vexing problems to emerge from the discovery rules have arisen out of requests for the production of documents or things prepared in anticipation of litigation or for trial. …The courts have steadfastly safeguarded against disclosure of lawyers’ mental impressions and legal theories, as well as mental impressions and subjective evaluations of investigators and claim-agents. In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted.18

The committee stressed, “Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision.”19 A very important point is that parties “… may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable.”20 Even when a court orders production of work product, it must be careful to distinguish facts from the attorneys’ mental impressions, opinions and strategy.

Rule 26(b)(3) and Section 3226(B)(2) do not protect statements taken of parties (including signed written statements or any type of recording and transcription), which must be produced to the parties. We often request or produce actual tape recordings to compare with written transcripts. All witnesses may request a copy of their own statements without having to show undue hardship or substantial need, but we do not produce witness statements to anyone other than the witnesses themselves. Even if statements were taken soon after the incident at issue, if the other parties can depose them and their memories are not significantly impaired, the other parties will probably not be able to show substantial need for our interviews.21

TRIAL PREPARATION: EXPERTS

In Oklahoma courts, Section 3226(B)(3) provides parties may issue a single interrogatory to discover the subject matter, substance of facts and opinions, grounds for the opinions, qualifications, publications authored in the last 10 years, compensation, and other cases in which the expert has testified by deposition or in trial in the past four years. As in federal court, documents provided to experts are not protected by the work-product doctrine.22 Therefore, we give experts only those things they need to learn the facts and form their opinions without revealing our thought processes or conclusions as attorneys. The experts’ entire files — including correspondence to and from our firm — are discoverable by the other side.

Both Rule 26(b)(4)(B-C) and Section 3226(B)(3)(c) provide the party requesting discovery pay experts in answering interrogatories and testifying at deposition. Many attorneys in Oklahoma like to be sure they are in charge of getting their own experts paid, so they stipulate each party will pay its own experts. The fees apply only to expert witnesses. Unfortunately, many professionals, such as treating physicians, become fact witnesses in cases and are not entitled to expert witness fees from an opposing party.23 If the opponent will not pay them an expert fee, the party calling them should provide compensation.

Under both Rule 26(b)(4)(B) and Section 3226(B)(3)(b), those experts who have been retained or specially employed for a case, but who are not expected to testify are protected from discovery unless the opponent can show “exceptional circumstances under which it is impracticable” to obtain facts or opinions by any other means. The rules protect parties who have consulted with experts who were not helpful to their case, and there is usually no shortage of experts to hire for the other side.

Privilege logs are required under both Rule 26(b)(5) and Section 3226(B)(4), including a description of work-product materials being withheld. Information about the withheld material must be specific enough — without revealing the protected information — for the other parties to judge whether the protection is justified.

Providing information pertinent to the applicability of the privilege or protection should reduce the need for in camera examination of the documents. … Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories. A party can seek relief through a protective order under subdivision (c) if compliance with the requirement for providing this information would be an unreasonable burden.24

As the 1993 committee warns, “To withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.”25 The federal Rule 26(b)(5)(B) provides for return or destruction of privileged material or work product inadvertently produced.

PROTECTIVE ORDERS

Many parties ask for agreed protective orders to prevent dissemination of proprietary information except for purposes of a particular lawsuit. In addition, if the parties cannot resolve a discovery issue after conferring (or attempting to confer) in good faith about a discovery dispute, one may move for a protective order in the court in which the action is pending or in whatever court has jurisdiction over a dispute involving a deposition. Upon good cause shown, the court under Rule 26(c)(1) or Section 3226(C)(1) may “… make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense …” The Oklahoma rule, Section 3226(C)(1), adds “harassment” and “undue delay.” The court may disallow the discovery altogether or limit it to certain aspects, impose specific conditions, require an alternative method, exclude the presence of persons other than those designated by the court, require depositions and other material to be sealed, and protect trade secrets and similar information. If the motion is denied, the court may order discovery to be had and may impose costs pursuant to Rule 26(c)(2) or Section §3226(C)(2).

The Oklahoma rule, Section 3226(C)(4), requires the party obtaining the protective order to be sure the court clerk handles the material properly and that witnesses are informed of its contents. In addition, Oklahoma has particular provisions when a protective order has the effect of removing any material from the public record; just because parties want secrecy is not sufficient.26 According to Section 3226(C)(2), orders must contain

… a statement that the court has determined it is necessary in the interests of justice to remove the material from the public record, … specific identification of the material which is to be removed or withdrawn from the public record, or which is to be filed but not placed in the public record, and … a requirement that any party obtaining a protective order place the protected material in a sealed manila envelope clearly marked with the caption and case number and is clearly marked with the word ‘CONFIDENTIAL,’ and stating the date the order was entered and the name of the judge entering the order.

Also in Oklahoma’s Section 3226(C)(3), protective orders entered after a document has been microfilmed will not require the microfilm to be amended (doubtless a difficult administrative process). It is important to follow the correct procedure when a party insists on confidentiality. We once had confidential settlement documents show up on OSCN because they had not been properly sealed.

Oklahoma’s Section 3226(C)(7) permits the filing of “John/Jane Doe” petitions -— clearly designated as fictitious names — when a protective order regarding a party’s identity will be sought. We have used a Doe plaintiff in a case involving infection with HIV from a transfusion and in other cases when it was justifiable to disguise the name of the party in the public record.

WHO GOES FIRST?

Plaintiffs and defendants have sparred over who needs to present their witnesses first. The 1993 committee notes answer the question in regard to expert depositions: “…[I]n most cases the party with the burden of proof on an issue should disclose its expert testimony on that issue before other parties are required to make their disclosures with respect to that issue.”27 It makes sense to submit the theory of the case and then have it rebutted.

Neither Rule 26(d) nor Section 3226(D) require a certain sequence of discovery to be followed, but the federal rule protects parties from discovery before the Rule 26 conference and provides parties may stipulate or the court may order a specific sequence “for the convenience of parties and witnesses and in the interests of justice…”

The provision was new in the federal rule in 1970. The committee notes stated:

A priority rule developed by some courts, which confers priority on the party who first serves notice of taking a deposition, is unsatisfactory in several important respects: First, this priority rule permits a party to establish a priority running to all depositions as to which he has given earlier notice. Since he can on a given day serve notice of taking many depositions he is in a position to delay his adversary’s taking of depositions for an inordinate time. Some courts have ruled that deposition priority also permits a party to delay his answers to interrogatories and production of documents. … Second, since notice is the key to priority, if both parties wish to take depositions first a race results. … But the existing rules on notice of deposition create a race with runners starting from different positions. The plaintiff may not give notice without leave of court until 20 days after commencement of the action, whereas the defendant may serve notice at any time after commencement. Thus, a careful and prompt defendant can almost always secure priority. This advantage of defendants is fortuitous, because the purpose of requiring plaintiff to wait 20 days is to afford defendant an opportunity to obtain counsel, not to confer priority. Third, although courts have ordered a change in the normal sequence of discovery on a number of occasions, … and have at all times avowed discretion to vary the usual priority, most commentators are agreed that courts in fact grant relief only for “the most obviously compelling reasons.”28

SUPPLEMENTING RESPONSES

Attorneys typically request opposing parties to supplement their responses to discovery in certain ways. However, the rules require supplementation only under certain circumstances. We typically answer any request to supplement that we will supplement as required by the rules. According to Rule 26(e) and Section 3226(E), the duty only arises if the party learns or obtains information that the response is incomplete or incorrect in some material respect and the additional or corrective information has not otherwise been made known to the other parties. It is especially important to supplement requests for the identity of witnesses or to notify the adversary when an expert’s opinion changes materially. A sure way to delay trial is to find witnesses late in the game or to belatedly change expert opinions.

The rule calls for reasonable supplementation, however, as stated in the 1993 committee notes:

Supplementations need not be made as each new item of information is learned but should be made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches. …The revision also clarifies that the obligation to supplement responses to formal discovery requests applies to interrogatories, requests for production, and requests for admissions, but not ordinarily to deposition testimony [other than experts’ testimony]. 29

AGREEING ON DISCOVERY PLANS

Rule 26(f) makes it the joint responsibility of all attorneys and unrepresented parties to arrange a discovery conference. “The obligation to participate in the planning process is imposed on all parties that have appeared in the case, including defendants who, because of a pending Rule 12 motion, may not have yet filed an answer in the case.”30

The state rule, Section 3226(F), provides for a conference at the discretion of the court or upon a proper motion by a party. Discovery plans or scheduling orders put some pressure on all parties to conduct discovery efficiently. Without them, justice grinds much too slowly in some cases.

CERTIFICATE OF GOOD FAITH

Both Rule 26(g) and Section 3226(G) provide that in signing discovery requests and responses, parties and their attorneys certify the information, to the best of their knowledge, after a reasonable inquiry and in accordance with existing law (or a good faith argument for the extension, modification or reversal of the law), is not offered for an improper purpose and is not unreasonable, unduly burdensome or expensive under the circumstances. If the rules are abused, sanctions may be imposed.31

As observed by the 1993 committee:

Excessive discovery and evasion or resistance to reasonable discovery requests pose significant problems. … The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. … Thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses. All of this results in excessively costly and time-consuming activities that are disproportionate to the nature of the case, the amount involved, or the issues or values at stake. Given our adversary tradition and the current discovery rules, it is not surprising that there are many opportunities, if not incentives, for attorneys to engage in discovery that, although authorized by the broad, permissive terms of the rules, nevertheless results in delay. … As a result, it has been said that the rules have “not infrequently [been] exploited to the disadvantage of justice.” … These practices impose costs on an already overburdened system and impede the fundamental goal of the “just, speedy, and inexpensive determination of every action.”32

Oklahoma lawyers are generally courteous and aware of the many advantages of cooperating with their adversaries in discovery. The need for sanctions should be rare.

1. Fed.R.Civ.P. 26(b)(1); 12 O.S. §3226(B)(1).
2. See, City of Edmond v. Parr, 1978 OK 70, ¶ 7, 587 P.2d 56, 57.
3. See, State ex rel. Oklahoma Bar Association v. Lloyd, 1990 OK 14, 787 P.2d 855, 859 (damaging pages of medical records withheld).
4. Hickman v. Taylor, 329 U.S. 495, 507 (1947).
5. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(a)(1).
6. Advisory Committee Notes on Fed.R.Civ.P. 26, 2000 Amendments, Subd. (a)(1).
7. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(a)(1).
8. Id.
9. Id.
10. Id.
11. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(a)(2).
12. 12 O.S. §3226(B)(3).
13. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(a)(2).
14. Advisory Committee Notes on Fed.R.Civ.P. 26, 1970 Amendments, Subd.(b)(2).
15. Id.
16. Id.
17. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(b).
18. Advisory Committee Notes on Fed.R.Civ.P. 26, 1970 Amendments, Subd.(b)(3).
19. Id.
20. Id.
21. See, e.g., First Wisconsin Mortgage Trust v. First Wisconsin Corp., 86 F.R.D 160 (E.D. Wis. 1980) (facts could be obtained in depositions or interrogatories); Wagi v. Silver Ridge Park W., 580 A.2d 1093, 1095, 1100 (N.J. Super. 1989) (must first show something inadequate in deposition testimony); Sulliven v. Smith, 604 N.Y.S.2d. 304, 305 (A.D. 3 Dept. 1993)(not sufficient if memories “not as clear” as when they gave prior statements); Castle v Sangamo Weston Inc., 744 F.2d 1464 , 1467 (11th Cir. 1984)(cannot establish substantial need if have not taken deposition); Setzers Super Stores of Georgia v. Higgins, 121 S.E.2d 305, 309 (Ga. 1961)(party seeking statement must first make effort himself to obtain information).
22. Id.
23. See, Oklahoma Orthopedic & Arthritis Foundation Inc. v. Millstead, 666 P.2d 242, 1983 OK CIV APP 15 (subpoenaed treating doctor not owed expert fee); Heffron v. District Court Oklahoma County, 2003 OK 75, 77 P.3d 1069 (unretained expert fire investigator who investigated fire in course of his duties entitled only to ordinary witness fee).
24. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(b)(5).
25. Id.
26. See, Oklahoma Open Records Act, 51 O.S. § 24A.2 for the public policy involved in keeping public records accessible; see also, 51 O.S. §24A.5; Nichols v. Jackson, 2001 OK CR 35, 38 P.3d 228; Oklahoma Pub. Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (When court had not ordered delinquency hearing open to public, but presence of media was known to the court, its order to preclude publication of juvenile’s name and picture violated the First and Fourteenth Amendments).
27. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(a)(2).
28. Advisory Committee Notes on Fed.R.Civ.P. 26, 1970 Amendments, Subd.(d).
29. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(e).
30. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(4).
31. Id.
32. Advisory Committee Notes on Fed.R.Civ.P. 26, 1993 Amendments, Subd.(g).

About The Authors

Ed Abel has been practicing plaintiffs’ personal-injury and insurance law since 1966. A graduate of the University of Oklahoma College of Law, he is a frequent lecturer at continuing education seminars in areas related to discovery and trials of civil lawsuits. A former president of Oklahoma Trial Lawyers Association, he was a co-author of the Oklahoma Pleading Code and the Oklahoma Evidence Code. He volunteers with Living Faith Ministries.

Discovery Rule 26 — A Practitioner’s Guide to State and Federal Rules
Published 79 OBJ 509 (March 8, 2008)