What Is Initial Disclosure in Federal Court

(a) In general. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of a witness that it can use at trial to present evidence in accordance with Federal Rule of Evidence 702, 703 or 705. the treatment of lawyers; Special protection of mental impressions, conclusions, opinions and legal theories concerning the dispute. – The courts are divided on whether the labor product doctrine extends only to the preparatory work of lawyers. The Hickman case left this question open, as the statements in this case were recorded by a lawyer. With respect to the courts of appeal, compare Alltmont v. United States, 177 F.2d 971, 976 (3d Cir. 1949), cert. refused, 339 U.S. 967 (1950) (Hickman turned to testimony obtained from FBI agents, theoretically it should be «all potential witness testimony that a party received for the use of its trial attorney»), with Southern Ry. c. Campbell, 309 F.2d 569 (5.

Cir. 1962) (Statements by Claim Agents not Work-Product) and Guilford Nat`l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962) (Avoidance of the question of Work-Product in concern to claim agents, decision of the case instead under Rule 34 «good cause»). Similarly, district courts are divided on claims agents` statements, see e.B. Brown v. New York, N.H. & H. RR., 17 F.R.D. 324 (S.D.N.Y. 1955) with Hanke v.

Milwaukee Electric Ry. & Transp. Co., 7 F.R.D. 540 (E.D. Wis. 1947); Investigators, compare Burke v. United States, 32 F.R.D. 213 (E.D.N.Y.1963) with Snyder v. United States, 20 F.R.D. 7 (E.D.N.Y.1956); and insurers, cf.

Gottlieb v. Bresler, 24 F.R.D. 371 (D.D.C.1959) with Burns v. Mulder, 20 F.R.D. 605 (ED.Pa 1957). See 4 Moore`s Federal Practice 26.23 [8.1] (2nd ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure §652.2 (Wright ed. 1961).

(2) Determination of order. If an application for a protection order is rejected in whole or in part, the court may, under certain conditions, order any party or person to make or authorize the disclosure. The amendment solves this problem in favour of disclosure. Most decisions refusing advance disclosure, some of which are expressly based on the wording of Article 26(b), justify that it allows only the discovery of factors which are admissible as evidence or which appear reasonably calculated to result in such evidence; They avoid political considerations and see them as isolated. See Bisserier v. Manning, loc. cit. Some also point out that facts about a defendant`s financial situation cannot be found as such before the judgment with dissatisfied enforcement, and fear that if the courts consider that insurance coverage is found, they will have to extend the principle to other aspects of the defendant`s financial situation. Cases that promote disclosure depend heavily on the practical importance of insurance in lawyers` decisions regarding the resolution and preparation of disputes. In danker`s clauses, 264 F.Supp.

246 (S.D.N.Y. 1967), the court held that the rules prohibit disclosure, but requested an amendment to make this possible. Disclosure of insurance coverage will allow lawyers on both sides to make the same realistic assessment of the case, so the settlement and litigation strategy is based on knowledge rather than speculation. This will help resolve in some cases and avoid lengthy litigation, although in other cases it may have the opposite effect. The amendment is limited to insurance coverage, which must be distinguished from all other facts relating to the financial situation of the defendant (1), since insurance is an asset created specifically to satisfy the claim; (2) because the insurance company normally controls the dispute; (3) because the information on coverage is available only from the defendant or his insurer; and (4) because the disclosure does not involve a material invasion of privacy. (e) the basis of manufacture; Unacceptable apologies. A party must provide its initial disclosures based on the information reasonably available to it at that time. A party is not exempt from its disclosures because it has not conducted a thorough investigation into the matter, or because it questions the sufficiency of another party`s disclosures, or because another party has not made its disclosures. However, with respect to process preparation documents, courts are increasingly interpreting the term «good reason» in such a way that it requires more than just relevance.

When lawyers have prepared or received the documents for the trial, all courts require more than relevance; so much is clearly commanded by Hickman. But also with regard to the preparatory work of non-lawyers, while some courts ignore the product of the work and equate «good reason» with relevance, e.B Brown v. New York, N.H. & H. RR., 17 F.R.D. 324 (S.D.N.Y. 1955), the most recent trend is to read «good reason» in such a way that it requires an examination of the meaning and needs of materials as well as alternative sources to obtain the same information. In Guilford Nat`l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962), testimony obtained from claims officers was found to be untraceable because both parties had equal access to witnesses at about the same time, shortly after the collision in question. The decision was based solely on article 34 and on «just cause»; The court refused to rule on whether the statements were a work product. The Court`s treatment of the «good cause» is described in detail and with approval in Schlagenhauf v.

Holder, 379 U.S. 104, 117–118 (1964). See also Mitchell v. Bass, 252 F.2d 513 (8. Cir. 1958); Hauger v. Chicago, R.I. & Pac. RR., 216 F.2d 501 (7. Cir. 1954); Burke v.

United States, 32 F.R.D. 213 (E.D.N.Y. 1963). Although statements of «good reason» often do not explicitly distinguish between documents intended for the preparation of studies and other documents, an overwhelming proportion of cases where special demonstration is required are cases where it is important to prepare studies. Subsection (b) (2) – Insurance policies. Both cases and commentators are hotly discussing whether the defendant`s liability insurance coverage can be discovered in the usual situation where the insurance coverage itself is not allowed and does not affect another issue of the case. Examples of federal cases requiring disclosure and supporting comments: Cook v. Welty, 253 F.Supp. 875 (D.D.C. 1966) (cases cited); Johanek v. Aberle, 27 F.R.D. 272 (D.Mont.

1961); Williams, Discovery of Dollar Limits in Liability Policies in Automobile Tort Cases, 10 Ala.L.Rev. 355 (1958); Thode, Some Reflections on the 1957 Amendments to the Texas Rules, 37 Tex.L.Rev. 33, 40–42 (1958). Examples of federal cases refusing disclosure and supporting comments: Bisserier v. Manning, 207 F.Supp. 476 (D.N.J. 1962); Cooper v. Stender, 30 F.R.D.

389 (E.D.Tenn. 1962); Frank, Entdeckung und Versicherungsschutz, 1959 Ins.L.J. 281; Fournier, Pre-Trial Discovery of Insurance Coverage and Limits, 28 Ford L.Rev. 215 (1959). Arguments can be made in both directions. The imposition of a permanent burden reduces the increase in additional interrogations. Some courts have adopted local regulations that impose such a burden. Z.B. E.D.Pa.R. 20(f), cited in Taggart v.

Vermont Transp. Co., 32 F.R.D. 587 (E.D.Pa. 1963); D.Me.R.15(c). Others have imposed the burden by decision, e.B. Chenault v. Nebraska Farm Products, Inc., 9 F.R.D. 529, 533 (D.Nebr. 1949). On the other hand, there are serious objections to the charge, especially in long-term cases.

Although the party signs the answers, it is their lawyer who understands their importance and has the responsibility to update the answers. In a complex case, all kinds of information reach the party, which barely understands its influence on previous answers given to interrogations. In practice, therefore, the lawyer must regularly review all interrogations and obtain all new information under a sustained burden. But a complete set of new answers may no longer be necessary for the party questioning it. Some questions will have been removed from the case, some questions will now be considered irrelevant, and other questions will certainly need to be reformulated. .