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Initial Discovery - MN Bench Book - Trial Procedures & Practices for Judges
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Initial Discovery

From MN Bench Book - Trial Procedures & Practices for Judges

Rule 26 has been changed to mirror the federal rules.

INTIAL DISCOVERY DISCLOSUERS

The parties must provide initial discovery disclosures within 60 days after the answer’s required due date. See Rule 26.01 (a) (3).


MEDICAL OR OTHER PROFESSIONAL MALPRACTICE CASE

In medical malpractice or other professional malpractice cases in which an expert affidavit is required, a party must make the initial disclosures within 60 days of the service of the expert affidavit. Id.

DISCLOSURE OF NAMES OF INDIVIDUALS WITH DISCOVERABLE INFORMATION

Under the revised Rule 26, the parties will disclose the name, and if known, the address and telephone number, of each individual likely to have discoverable information, along with a listing of the subjects known by each person, save those categories solely reserved for impeachment. See Rule 26.01 (a) (1) (A).


DISCLOSURE OF DOCUMENTS, ELECTRONICALLY STORED INFORMATION AND PHYSICAL OBJECTS

Each party must also disclose a copy, or a description by category and location, of all documents, ESI (electronically stored information), or tangible things that the party has in their possession and which that party may use to support its claims or defenses, unless the document’s use would be used solely for impeachment. See Rule 26.01 (a) (1) (B).

COMPUTATION OF DAMAGE CLAIMS

Rule 26 now requires each party to provide a computation of each category of damages claimed by the disclosing party, and that party must also make available for inspection and copying those documents which support the damages claimed. See Rule 26.01 (a) (1) (C).

INSURANCE AGREEMENTS

Relevant insurance agreements must also be produced. See Rule 26.01 (a) (1) (D).

EXCEPTIONS TO DISCLOSURE REQUIREMENTS

There are several case type exceptions to Rule 26’s disclosure requirements, which are listed at Rule 26.01 (a) (2) (A)-(V). However, the exceptions will not apply in the context of a “standard” civil case.

EXPERT REPORTS

Expert disclosures have also been modified under Rule 26. Expert reports must contain certain categories of information and sufficient analytical detail, as set forth in Rule 26.01 (b). Expert disclosures will be made per the trial court’s scheduling order, or in any event no later than 90 days before the date set for trial. Expert rebuttal evidence must be disclosed within 30 days of the other party’s initial expert disclosure. See Rule 26.01 (b) (4) (A) and (B).

WITNESS AND EXHIBIT INFORMATION

Rule 26 also mandates that 30 days before trial, the parties must exchange relevant witness and exhibit information. Objections to any pretrial disclosures must follow 14 days later. See Rule 26.01 (c) (1) and (2).

SANCTIONS FOR FAILURE TO DISCLOSURES REQUIRED BY RULE 26

Under Rule 37, sanctions will now be available for a party’s failure to make proper disclosures. By rule, if a party now fails to provide information or identify a witness as required under Rule 26, the party is not allowed to use that information or witness, unless the court determines the failure was substantially justified or is harmless. The court may also order payment of costs or impose other sanctions. See Rule 37.03 (a).

If a party fails to participate in good faith in developing and submitting a proposed discovery plan, the court may require that party or attorney to pay the reasonable expenses, including attorney’s fees, caused by the failure. See Rule 37.06.