Continuing the series on Litigation Basis, this section delves into Chapter 3 which discusses disclosure statements. Contact Fowler St. Clair for any litigation services you might need if you live in Phoenix, Scottsdale or Mesa, AZ.
Rule 26.1 Disclosure Statements
The purpose of a Rule 26.1 disclosure statement is to fairly, accurately, and candidly apprise the other side of your case. The most critical components of the disclosure statement are witnesses and documents.
If a witness or document is not disclosed in a Rule 26.1 disclosure statement, the undisclosed witnesses and documents likely cannot be used at trial. This is why it is important to focus on gathering as many documents as possible and identifying as many witnesses as possible early on in the case so that they can be disclosed with the initial Rule 26.1 disclosure statement.
Each side also has a duty to disclose all documents that are relevant or likely to lead to the discovery of admissible evidence. The failure to disclose such documents can result in sanctions.
1. Timeframes
Rule 26.1 disclosure statements are to be exchanged within 40 days of the filing of a responsive pleading to the complaint, counterclaim, cross-claim, or third-party complaint. The initial disclosure statement must be supplemented as additional witnesses and documents come to light.
Each new document or witness must be disclosed within 30 days after they are revealed or discovered. If a witness or document is disclosed later than 60 days before trial, a motion must be filed asking the court to extend the time for disclosure.
2. Witnesses
All possible witnesses should be disclosed. And, the description of each witness should be as broad as possible and then narrowed to identify specific areas of testimony. For example, the description should read “Mr. Smith will testify as to his personal knowledge of the facts set forth in the complaint and this disclosure statement. Specifically, Mr. Smith will testify that . . . . “
3. Documents
The best way to review and organize documents is by placing them in chronological order. This will allow for a better understanding of the timeline of events and eliminate any duplicates.
When eliminating duplicates, care should be taken to make sure the document that is eliminated is truly a duplicate and does not have a slight variance from the other document (i.e. handwritten notes or edits).
Once the documents are placed in chronological order and the duplicates are eliminated, they should be Bates labeled. Bates labeling allows for easy identification of documents at a hearing or trial. It also provides proof that the documents have been disclosed. Most professional PDF programs have the ability to create Bates labels.
4. Verification
The initial disclosure statement must be verified.
The most critical components of the disclosure statement are witnesses and documents. If a witness or document is not disclosed in a Rule 26.1 disclosure statement, the undisclosed witnesses and documents likely cannot be used at trial.
This is why it is important to focus on gathering as many documents as possible and identifying as many witnesses as possible early on in the case so that they can be disclosed with the initial Rule 26.1 disclosure statement.
Each side also has a duty to disclose all documents that are relevant or likely to lead to the discovery of admissible evidence. The failure to disclose such documents can result in sanctions.