S A L T L A K E C I T Y | L A S V E G A S | R E N O | P A R S O N S B E H L E L A W . C O M
Joe Stultz and Elizabeth Silvestrini
Parsons Behle & Latimer
October 13, 2011
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such. The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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 Due to the significant changes in the discovery rules, the Supreme Court order adopting the 2011 amendments makes them effective only as to cases filed on or after the effective date, November 1, 2011, unless otherwise agreed to by the parties or ordered by the court
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Initial disclosures expanded to include:
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Names of fact witnesses who may be called in case-in-chief and summary of expected testimony
Documents that party may offer in case-in-chief
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Can no longer provide “a description by category and location of … all discoverable documents”
Computation of damages claimed with documents supporting the claim
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Must be made by the Plaintiff within 14 days after service of the first answer.
 Pre-preparation needed given extensive initial disclosure requirements.
Defendants --within 28 days after plaintiff’s initial disclosures or the defendant’s first appearance, whichever is later.
Motion to dismiss tolls these dates
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

Plaintiff
14d
Initial
Disclosures
Due
Standard Fact
Discovery
Begins
Initial Disclosures Due
(unless you appeared later, then due 28d from that date)
28d
Defendant
120d
Tier 1
180d
Tier 2
210d
Tier 3
Within 7 days after fact discovery ends, party with burden of proof on issue must give initial expert disclosures
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Make disclosures based on information known or reasonably available
NOT excuses: Investigation incomplete; or the other party has not made disclosures
Party may not use witness or document at trial in the party’s case-in-chief unless failure harmless or party shows good cause for failure
Timely supplements must state why information not previously provided
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Additional requirements for domestic relations actions such as divorce and child support
Financial declaration with items such attachments federal and state tax returns, pay stubs, etc.
Additional standard disclosures can be added for other practice areas. Rule 26.2?
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

Tier
Amount of
Damages
Total Fact
Deposition
Hours
Rule 33
Interrogatories
Rule 34 Request
Requests for for Production
Rule 36
Admission
Days to
Complete
Standard
Fact
Discovery
1 $50,000 or less
2
3
Greater than
$50,000 and less than $300,000 or non-monetary relief
$300,000 or more
3
15
30
0
10
20
5
10
20
5
10
20
* Amount of damages is the total of all monetary damages (without duplication for alternative theories) sought by all parties in all claims
120
180
210
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Standard fact discovery per side (plaintiffs collectively, defendants collectively, and thirdparty defendants collectively)
Discovery motions will not toll the period
Days to complete calculated from date first defendant’s first disclosure is due
Does not include timing of expert discovery under 26(a)(4)(C) and (D)
After expiration of time limits, case presumed ready for trial
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Two methods: Stipulation or Motion (Rule 26(c)(6))
Stipulation for extraordinary discovery:
 Before close of standard discovery AND after reaching limits of standard discovery
Accompanied by stipulated statement saying:
 Additional discovery necessary and proportional
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Each client has approved discovery budget
Statement not required if just extending time unless extension interferes with Court order re completion of discovery or with hearing or trial (Rule 29)
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Before close of standard discovery AND after reaching limits of standard discovery
Stipulated statement saying:
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Additional discovery necessary and proportional
Each client has approved discovery budget
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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All experts must be disclosed just after discovery deadline: Retained and Non-Retained
 No discovery requests, automatic
For retained experts, provide:
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Name and qualifications, including publications authored over last 10 years
List of cases where expert testified over last 4 years
Brief summary of anticipated opinions
Data and other information to be relied upon
Compensation
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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The party opposing the expert has the option to choose a report or a deposition
 Party hiring expert pays for report, party opposing pays for deposition
Expert testimony at trial limited to what is
“fairly disclosed” in the report
Deposition is limited to 4 hours (scope of trial testimony not limited)
Draft expert reports and communications between attorney and expert now protected
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Non-retained experts : The party offering them as experts must provide a summary of the facts and opinions to which they are expected to testify
A deposition of such a witness may not exceed four hours
Examples of non-retained experts: treating physicians, police officers, or employees with special expertise
A party should receive advance warning of these witnesses and their opinion testimony through Rule
26(a)(1)(A)(ii)
Opinions should be explored in deposition
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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The disclosure of the expert witness must be made within 7 days after the close of discovery.
Opposing party has additional 7 days to serve a notice electing either written report or deposition.
If no election, forfeit both report and deposition.
Deposition shall occur or the report provided within 28 days after the election is made.
Opposing party designates rebuttal expert within
7 days of deposition or report.
(Process repeats)
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

End
Fact
Discovery
7d
Elect Depo OR
Report (or no further discovery on expert)
28d Party without Burden of Proof
28d
7d
Take
Expert’s
Deposition
Initial Expert
Disclosure Due
Turn over
Expert
Report
Initial Expert
Disclosure
Due
7d
28d
Turn over
Expert
Report
Elect Depo OR Report (or no further discovery on expert)
7d
Take
Expert’s
Deposition
28d
Party with Burden of Proof
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Without waiting for a request, a party will disclose:
 Will-call witnesses and may-call witnesses, unless for impeachment
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Deposition transcript witnesses with designated testimony
Exhibits, including charts
Timing is 28 days before trial
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Objections to exhibits or depositions 14 days before trial
Counter-designations of deposition testimony 14 days before trial
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Unless you plead a damages amount, your pleading must specify under which Tier your damages fall.
If you plead under Tier 1, you waive your right to damages exceeding $50,000. If you plead under Tier 2, you waive your right to damages exceeding $299,000.
 (You can still amend pleading under R15)
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Pleadings do NOT require a statement of facts
BUT
 Parties are encouraged to lay cards on the table early in the litigation.
The more facts pled, the more disclosure you will get!
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Rule 26(f) eliminated: Discovery and scheduling conference gone!
However, the court may call a Pretrial Conference to discuss discovery and scheduling issues or a party may move for such a conference
Unless an order sets trial date, any party may and plaintiff shall certify that discovery and ADR processes are complete and that the case is ready for trial
The court may set a final pretrial conference or a party may move for such a conference to discuss settlement or trial management
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Rule 33 Interrogatories
Rule 34 Requests for Production of
Documents
Rule 36 Requests for Admissions
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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The person being examined may now record
(audio or video) the examination
Medical examiners are treated as expert witnesses, so you must disclose them under expert discovery timing if you want to use them at trial
Production of medical examiner’s prior reports no longer required
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Rule 37 consolidates motions for protective order (formerly in Rule 26(c)) with motions to compel.
Party seeking a motion to compel or to overcome a protective order must demonstrate proportionality.
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

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Under Rule 26(b)(3), party seeking discovery always has burden of showing relevance and proportionality.
Under old rules, recipient of discovery request bears the cost.
Under new rules, Court may order that costs, expenses and attorney fees incurred in discovery be allocated among parties as justice requires to achieve Rule 26(b)(2) proportionality
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

4.
5.
2.
3.
1.
6.
Discovery is reasonable, considering the needs of the case, amount in controversy, complexity of the case, parties’ resources, importance of the issues, and importance of the discovery in resolving the issues;
Likely benefits outweigh burden or expense;
Consistent with the overall case management and will further the just, speedy and inexpensive determination of the case;
Not unreasonably cumulative or duplicative;
Information cannot be obtained from another source that is more convenient, less burdensome, or less expensive; and
The party seeking discovery has not had a sufficient
opportunity to obtain the information, taking into account the parties’ relative access to the information
This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.

This work product constitutes the analysis and opinions of the authors, but is not intended be legal advice and may not be relied on as such.
The reader should not rely on the accuracy of anything contained herein, but should instead consult an attorney and/or carefully review the revised rules, advisory committee notes, and pertinent case law in forming any conclusions.