Concept
Timing of Initial Disclosures
Required disclosures, conference, and timing
Timing of Initial Disclosures
Two questions govern the timing of initial disclosures: when they are due, and what can move that date. The rules answer the first with a fixed default and the second with a short, closed list.
Rule 26(a)(1)(C) supplies the default. A party must make its initial disclosures at or within 14 days after the parties’ Rule 26(f) conference. The date moves in only three ways. The parties may stipulate to a different time. The court may order a different time. Or a party may object during the conference that initial disclosures are not appropriate in this action and state the objection in the proposed discovery plan, in which case the court must determine what disclosures, if any, are to be made and must set the time for them.1
Each route puts a second decision-maker between the disclosing party and the delay. A stipulation needs the opponent’s agreement; an order, or a ruling on a recorded objection, needs the judge. The design has a reason. Initial disclosures are owed to the opponent, and a deadline the disclosing party could move alone would give control of the timing to the side that holds the information. The rule’s wording closes the last gap: a party “must make the initial disclosures” within the time the rule provides unless a listed adjustment applies, which leaves no room for self-help by flat non-disclosure.2 The subsections below take the default first and then each route in turn.
The Fourteen-Day Default
The 14 days run from the Rule 26(f) conference. Disclosures are due “at or within” 14 days after it, so the window opens when the parties confer and closes two weeks later.3 Neither the filing of the complaint, nor service of process, nor the court’s scheduling order starts the count. The parties bring the starting event about themselves, and that choice of anchor is the first thing to master.
The conference sits in the middle of a sequence that exam stems like to scramble. The plaintiff files the complaint, and service starts the clock on the court’s scheduling order, which is due within 90 days after any defendant is served or 60 days after any defendant appears.4 The parties then confer, and both the disclosures and the written report of the proposed discovery plan fall due within 14 days after the conference.5 The scheduling order comes last. The conference itself cannot drift. Unless the proceeding is exempt or the court orders otherwise, the parties must confer as soon as practicable and at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b).6 A party therefore cannot stretch its disclosure date by delaying the conference, because the conference has an outer limit and the disclosures trail it by 14 days.
The conference is also the natural anchor because of what the parties must do there. They must make or arrange for the initial disclosures and develop a proposed discovery plan, so the deadline falls just behind the meeting that addresses both.7 The same conference gates formal discovery: unless the proceeding is exempt, or the rules, a stipulation, or a court order authorize it, a party may not seek discovery from any source before the parties have conferred.8 The next section takes up that moratorium. The design to notice here is that the exchange of basic information is tied to the meeting that opens the door to discovery.
Two mistakes recur on exams: counting the 14 days from service, and assuming that a party with investigating left to do may wait until it finishes. Rule 26(a)(1)(E) forecloses the second. A party must make its initial disclosures on the information then reasonably available to it, and three tempting reasons for waiting are expressly unacceptable: the party has not fully investigated the case, it challenges the sufficiency of another party’s disclosures, or another party has not made its disclosures.9 Each excuse fails for its own reason.
An unfinished investigation would swallow the deadline. Fourteen days after the conference, nearly every party can say it still has more to learn, and if completeness were a precondition, each party would set its own date by deciding when it had finished looking. The rule asks instead for a snapshot of what the party has and can reasonably reach on the due date. The continuing duty to supplement covers what the party learns afterward: it must correct or complete a disclosure in a timely manner if it learns that the disclosure is materially incomplete or incorrect and the corrective information has not otherwise been made known to the other parties.10 The word “reasonably” cuts both ways. Facts the party has not yet uncovered lie outside the duty on the due date, but a witness whose name sits in the party’s own files does not.
A challenge to the sufficiency of another party’s disclosures fails because each party’s duty stands on its own. A lawyer who finds the opponent’s list thin may have a sound complaint, but the complaint belongs with the opponent or the court. Treating it as a reason to hold back would let any party answer an obligation with a grievance.
The opponent’s failure to disclose fails as an excuse for the same reason, and it also invites a standoff. If each side could wait for the other, and both did, the exchange would never begin. Because the duties are independent, one side’s default does not license the other’s.
Flat refusal fails alongside the three excuses. The rule says a party must make the initial disclosures within the time it provides unless a listed adjustment applies, so a party cannot withhold material on its own say-so while a motion is pending.11 The default bends only through the routes the rule names, and each requires someone besides the disclosing party to act. The next three subsections take them in turn.
Delay by Stipulation
The first route is agreement. Rule 26(a)(1)(C) lets the parties set a different time for initial disclosures by stipulation, and because the opponent must consent, no judge has to evaluate the reason for delay.13 The court in Flores v. Southern Peru Copper Corp. described this route and the court-order route as two delay buttons built into the rule: stipulation by the parties if they agree, and an order by the district court if they do not.14 The operative words are “if they agree.” A stipulation exists only when both sides consent.
Flores shows the device at work on part of a case. The defendant, a copper company, had filed and served a dispositive motion on March 5, 2001, and the parties stipulated to adjourn the first three disclosure categories (witnesses, documents, and the damages computation, which the opinion cites as subsections (A) through (C)) until the court ruled on it.15 They could not agree on the fourth category, insurance agreements. The defendant wanted it adjourned with the rest, and the plaintiffs insisted on it at once because the rule required it and they had not agreed to waive that provision.16 Their refusal closed the stipulation route for insurance, a point the next two subsections pick up.
The requirement of agreement follows from who bears the cost of delay. Postponing initial disclosures postpones the moment the opponent receives the baseline facts it needs to plan its own discovery. If the disclosing party could fix that date alone, the holder of the information, which may have good reason to prefer delay, would control the timing of a duty owed to someone else. Requiring consent places the decision with the party that absorbs the postponement. The same structure explains why the Flores defendant could not simply hold its policies back while the motion was pending: the rule requires disclosure within its time unless a listed adjustment applies, and the stipulation adjustment was unavailable for insurance because the plaintiffs refused.17
A bar-exam stem on this rule usually gives the party that wants delay a sympathetic reason, such as a pending motion or the expense of searching for records. The reason matters only to a judge deciding whether to order delay; it does not create a stipulation when the opponent declines. A second error treats agreement on some categories as agreement on all. A stipulation sets a different time only for what the parties covered, so each category it leaves out keeps the 14-day default.
Delay by Objection
A second route runs through the judge and needs no one’s consent. The 14-day default yields when “a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan.” The court must then determine what disclosures, if any, are to be made, and it must set the time for disclosure.19 The route differs from a stipulation in who has to act. A stipulation needs the opponent, and in Flores v. Southern Peru Copper Corp. it failed for insurance because the plaintiffs refused.20 An objection needs no agreement, but it earns only a ruling: the court may excuse some or all of the disclosures, defer them, or require them on the ordinary schedule.
The rule imposes two steps at two places, and a party must complete both. The party must voice the objection during the conference, and it must state the objection in the proposed discovery plan. An objection made on the call and omitted from the plan is half an objection, because the rule requires more than a spoken one.21 Each step has its own job. The conference is where the parties must make or arrange the initial disclosures, so an objection raised there reaches the opponent while the subject is under discussion, and a short conversation may produce a stipulation that makes court involvement unnecessary.22
The second step carries the dispute to the judge. The proposed discovery plan is the written report the lawyers must submit to the court within 14 days after the conference, and the rule makes it the place where the objection must appear.23 A remark on a telephone call leaves nothing the judge can read. Writing the objection into a document already headed to the court gives the rule’s command that the court must rule something to act on. The deadlines also run side by side: the plan report and the initial disclosures both fall due within 14 days after the same conference, so an objection that never reaches the plan leaves the default standing with nothing on the record to displace it.
Once the objection is properly stated, the court’s task is broader than choosing a date. It decides what disclosures, if any, are owed, so its ruling can reach the content of the duty as well as the timing, and it sets the time for whatever it requires.24 The objection also belongs to the particular case, since the rule speaks of disclosures that are not appropriate “in this action.” The committee note points the same way: case-specific orders remain proper after the amendments and are expressly required if a party objects that initial disclosure is not appropriate in the circumstances of the action.25
Flores shows the gap from the other side. The defendant had a dispositive motion pending and wanted to keep its insurance agreements back until the court ruled. The parties had stipulated to defer the first three categories, but they could not agree on the fourth, so the stipulation route closed for insurance.26 The objection route offered no help either, because the parties apparently had not yet proposed a discovery plan, which left no document in which to state an objection.27 The case appears to have followed the third route, a court order, which the next subsection takes up.28
Delay by Court Order
Rule 26(a)(1)(C) names a court order as the third authorized adjustment. The 14-day default applies “unless a different time is set by stipulation or court order,” or unless a party’s recorded objection leads the court to set the time.32 The routes differ in who must act. A stipulation needs the opponent’s consent; an objection must be voiced at the conference and written into the plan before the court rules on it; and an order issues when the party asks the court directly, which makes it the route left open when the opponent will not agree.33 The rule places the order clause beside the stipulation clause and attaches no condition of agreement to it.
Flores shows the order route working. The stipulation had covered three categories, and the plaintiffs refused to defer insurance.34 A defendant facing a possible dismissal has two reasons to want those policies held back. Insurance agreements reveal coverage limits that suggest a settlement range to plaintiffs, and they may also show ownership or control of environmentally sensitive land, which mattered to a copper company. If the court grants the dispositive motion and dismisses the case, the defendant never makes the disclosure.35
The plaintiffs answered that Rule 26(a)(1) “requires” the insurance disclosure, that they had not agreed to waive it, and that the Southern District had repealed its opt-out from Rule 26.36 The opinion’s answer starts with the rule’s text. The argument that disclosure is required without the plaintiffs’ consent overlooks the provision that the designated disclosures must be made except to the extent otherwise stipulated or directed by order. The drafters built in two delay buttons: stipulation by the parties if they agree, and an order by the district court if they do not. The parties had pushed the first for three categories, and the defendant asked the court to push the second for the fourth.37
The repeal of the opt-out proves less than the plaintiffs needed. The committee note explains that the amendments removed the authority to alter or opt out of the national disclosure requirements by local rule, invalidating not only formal local rules but also informal standing orders that purport to create exemptions from, or limit or expand, the national disclosure. Case-specific orders remain proper, however, and are expressly required if a party objects that initial disclosure is not appropriate in the circumstances of the action.38 The line the note draws makes sense. A standing order speaks about cases the judge has never seen, so it swaps the national default for a guess. A case-specific order answers facts in front of the judge: what a disclosure will cost, what it would reveal, and what the opponent needs it for now. A judge therefore cannot announce in advance that disclosure is deferred in every case with a pending motion, although the same judge may defer it in one suit after hearing from the parties.
The court sustained the defendant’s objection to making the insurance disclosure at that time and ordered that it be made together with the other information if the dispositive motion is denied.39 The order moved the date and left the duty in place. If the motion succeeds, the defendant never discloses; if it fails, the plaintiffs lose only the interval, because the policies come due with the rest. The plaintiffs’ refusal to stipulate had closed one route and left the other open.
Rule 26(a)(1)(C) states no test for the court’s order, so a request to move the date is a matter of persuasion addressed to the judge’s discretion. Courts describe their authority over pretrial discovery in just those terms. In In re Silica Products Liability Litigation, a mass tort proceeding, the court called its case-management orders an exercise of its wide discretion over pretrial discovery, especially when handling the complex issues and potential burdens on defendants and the court in mass tort litigation. One of them, Order No. 4, required defendants to disclose the silica-related products they manufactured or distributed from 1930 forward.40 That order concerned the content of a disclosure and not the 14-day clock, but it shows the same tool at work.
Elsewhere the rules supply the vocabulary of burden-and-benefit judgments. The scope of discovery turns on proportionality to the needs of the case, including the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit.41 A request to defer a disclosure is naturally framed in those terms: what early disclosure costs, what it exposes, and what the opponent needs it for now.
The Flores defendant wanted to hold back the same kind of material for the same reason, and it obtained a deferral because it took the request to the judge. The usual exam errors are to read “required” as absolute and to treat the opponent’s refusal to stipulate as the end of the inquiry. A refusal closes only the stipulation route. A request the court has not acted on has not changed anything either, so a party that wants delay should bring the request to the judge before the default date arrives.