Pretrial Disclosures

Pretrial Disclosures

Rule 26(a)(3)(A) closes out the required disclosures. Beyond the initial disclosures under Rule 26(a)(1) and the expert disclosures under Rule 26(a)(2), a party must provide the other parties, and promptly file, specified information about the evidence it may present at trial other than solely for impeachment.¹ The rule says a party “must provide” this information and mentions no request, so opponents never have to ask for it. It also pairs two acts, serving the other parties and filing with the court, so the judge sees the same lists the opponents do.

This final wave arrives shortly before trial and covers three categories of evidence: the witnesses a party expects to call, the witnesses whose testimony will be presented by deposition, and the exhibits the party expects to offer.² The next three subsections take them in that order, a fourth teaches the deadline, and a fifth covers the objections the lists make possible. Two points cut across every category, so this opening states them once.

First, every category excludes evidence used solely for impeachment. Impeachment is an attack on a witness’s credibility, as when a lawyer confronts an adverse witness with an earlier statement that contradicts the testimony. A witness, deposition, or document that would serve only that purpose supports no claim or defense of its own, so it stays off the lists. The word solely carries the exception: an item that would also support the party’s own case must be listed even though it could impeach as well.

Second, the final wave exists because a case looks different shortly before trial than it did at the start. Initial disclosures fall due at or within 14 days after the Rule 26(f) conference, early in the case, before either side has settled on its trial evidence.³ By the eve of trial each party has chosen its case, and the lists make those choices visible. An opponent who knows which witnesses will testify, which depositions will be read, and which exhibits will be offered can prepare its cross-examinations, line up its own witnesses, and decide what to contest. That is the purpose of the discovery rules: to make a trial “less a game of blind man’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”⁴ Surprise, dearly cherished by an earlier generation of trial lawyers, was meant to be minimized or ended.⁵

Trial Witnesses

The witness list is the first pretrial item. For each witness, the party gives the name and, if not previously provided, the address and telephone number, and it separately identifies the witnesses it expects to present and those it may call if the need arises.⁶ Shortly before trial the party has chosen its case, so the list turns the party’s early uncertainty into a statement of who will actually testify.⁷ A person whose only use would be impeachment falls outside the duty.⁸

The item asks for three things, and the first two are modest. The name identifies the witness. The address and telephone number let the opponent find the person to interview or subpoena. The phrase if not previously provided spares the party from repeating contact details the opponent already holds, since a second copy gives the recipient nothing new. The witness still appears by name, because the list is the party’s statement of who will testify.

The third requirement, the sorting, separates a useful list from a roster of everyone the party has ever heard of. An opponent should plan around a witness the party expects to present: it may take a deposition, prepare a cross-examination, and arrange its own evidence to answer the testimony. A witness the party may call only if the need arises, such as a rebuttal witness or a records custodian needed only if a document’s authenticity is challenged, calls for a lighter response. A bare list of names would force the opponent to prepare for every person as if each were certain to appear. Dividing the list moves the knowledge of who is who to the party that has it, so the opponent can prepare realistically and the trial holds fewer surprises.⁹

Trial judges push in the same direction. In Dahl v. Dahl, the trial court at a June 17, 2009 pretrial conference ordered the parties to exchange “an actual schedule of the people [they planned] to call and the exhibits [they planned] to use” no later than two weeks before the first day of trial. The court told the parties to “carefully contemplate who they [were] actually going to call” and cautioned them against simply listing multitudes of potential witnesses.¹⁰ The passage describes a judge’s own pretrial order, so it illustrates court-set practice and does not construe Rule 26(a)(3). It does show why the rule asks for two categories instead of one padded list: a list swollen with maybes tells the other side nothing about the trial that will actually occur.

Two errors recur. One is treating the may-call category as a place to park every conceivable witness, which defeats the sorting. The other is leaving off a witness who may be called only if needed, although the rule requires that witness to be identified in a category of its own.

Deposition Designations

The second pretrial item covers testimony that will reach the jury through a recording or a transcript instead of a live witness. A party must provide the designation of the witnesses whose testimony it expects to present by deposition and, if the deposition was not taken stenographically, a transcript of the pertinent parts.¹² A deposition is a witness’s out-of-court testimony taken before trial, and a party sometimes reads or plays it for the jury in place of live testimony, usually because the witness cannot attend. The witness list reaches people who will take the stand. This item reaches people whose words will arrive another way. Without it the final wave would have a gap, because testimony could come before the jury from a witness the opponent never saw on any list.¹³

The duty has two parts, and each has its own trigger. The designation is triggered by what the party expects to present by deposition. Unlike the witness and exhibit items, which each add a may-call or may-offer category,¹⁴ the text of this item names only the testimony the party expects to present.¹⁵ The transcript requirement applies only when the deposition was not taken stenographically, meaning no record was made by stenography. A deposition preserved only on video or audio leaves the opponent with nothing to read, so the rule supplies a transcript of the pertinent parts. The word pertinent limits the transcript to the portions the party intends to use, so the party need not transcribe the whole deposition.

Both parts serve what the opponent must do next. Shortly after the pretrial disclosures, the opponent gets a short window to object to the use of a designated deposition, taught later in this section.¹⁶ An objection needs something to object to. The designation identifies the witness, and the transcript shows the exact words, so the opponent can decide what to contest before the window closes. The objection itself is made under Rule 32(a), and this duty only puts the designation in front of the opponent.

A deposition that is taken and never designated falls on the other side of the line.

The usual error is to treat every deposition taken in the case as one that must be designated. Taking a deposition is a discovery event, while designation is a decision about trial use, and many witnesses are deposed and then testify live or never testify at all. A second error is to read the transcript requirement as applying to every designated deposition, when it applies only if the deposition was not taken stenographically.

Trial Exhibits

The third pretrial item covers the things the jury will be shown. A party must provide an identification of each document or other exhibit, including summaries of other evidence, and must separately identify the items it expects to offer and those it may offer if the need arises.¹⁹ Like the other pretrial items, this one reaches evidence a party may present at trial other than solely for impeachment.²⁰ The wording is broad on purpose. It covers writings, photographs, physical objects, and any other exhibit a party will tender. The reference to summaries of other evidence means a chart that condenses voluminous records must itself be identified, because the opponent needs to see what the jury will be shown and not only the records beneath it.

The two-category structure mirrors the witness list and serves the same end. An opponent who knows which exhibits will be offered can examine them, prepare responses, and raise objections before trial instead of in the middle of it, which serves the discovery rules’ aim of minimizing surprise.²¹ A single undivided list would defeat that aim, because the party receiving it could not tell the items certain to appear from those that are only possibilities and would have to prepare against every one equally. The party that compiled the list knows which items are which, and the rule moves that knowledge to the opponent.

The impeachment carve-out removes one more class of material from the list. The lead-in that governs all three pretrial items reaches evidence a party may present other than solely for impeachment, so a document whose only use is to attack a witness’s credibility stays off the exhibit list.²²

A judge’s own pretrial order can ask for more than the federal text does. In Dahl v. Dahl the trial court repeatedly emphasized that the parties were to exchange the “actual exhibits” they planned to use,²³ and the opinion’s heading records that the district court did not abuse its discretion when it limited the number of exhibits one party could introduce at trial.²⁴ The federal text calls for an identification of each exhibit,²⁵ so a lawyer should read any pretrial order alongside the rule.

The exhibit list also gives the opponent something to object to. Within 14 days after the pretrial disclosures are made, unless the court sets a different time, a party may serve and promptly file any objection, with its grounds, to the admissibility of the materials identified under this item. An objection not made in that window is waived unless it arises under Federal Rule of Evidence 402 or 403 or the court excuses it for good cause.²⁶ The last subsection teaches that window in detail. For now, note that an accurate and properly divided exhibit list is the foundation for every later objection. Two errors recur: treating the may-offer category as a place to park every conceivable exhibit, and assuming a summary chart need not be listed because the records beneath it are.

Thirty-Day Deadline

The witness list, the deposition designations, and the exhibit list share one deadline. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial.²⁸ The phrase at least sets a floor: a party that serves its lists 45 days before trial complies, and a party that serves them 20 days before trial is late. The count runs backward from the trial date, so the deadline does not depend on when the complaint was filed or when the parties conferred. When the judge has said nothing on the subject, the rule supplies the date, and when the judge has set one, the judge’s date controls.

The 30-day lead lets the lists do their work. A list helps an opponent only if the opponent has time to read it, check each designated deposition and each exhibit against the rules of evidence, and raise objections while a judge can still rule on them calmly. The rule builds that sequence into a second clock: within 14 days after the disclosures are made, unless the court sets a different time, a party may serve and promptly file objections to the use of designated depositions and to the admissibility of identified exhibits.²⁹ The two periods run in opposite directions, since the 30 days counts back from trial and the 14 days counts forward from the disclosure. A disclosure made on the last permitted day therefore leaves about 16 days between the close of the objection window and the start of trial, and that margin lets the court resolve disputes in advance. Disclosures made on the eve of trial would force the same objections to be raised and decided in the courtroom.

The rule’s opening clause lets a judge replace the default, and Dahl shows an order doing it. At the June 17, 2009 pretrial conference, the trial court directed the parties to exchange a schedule of the people they planned to call and the exhibits they planned to use no later than two weeks before the first day of trial.³⁰ Because the passage describes the court’s own order, it does not interpret Rule 26(a)(3), but it illustrates the point: a court-set date, and not a general lead time, governed the exchange. Under the federal rule an order may set the exchange closer to trial, as the two weeks did in Dahl, or much earlier, and the order governs because the 30-day figure applies only unless the court orders otherwise.³¹

Setting this deadline beside the earlier ones keeps the disclosure duties from blurring together, because each runs on a different anchor:

1. Initial disclosures are due at or within 14 days after the Rule 26(f) conference, so their clock starts early in the case and has no connection to the trial date.³²
2. Expert disclosures, covered earlier in this chapter, run on their own schedule, so neither the conference clock nor the 30-day clock should be assumed for them.
3. Pretrial disclosures are due at least 30 days before trial unless the court orders otherwise.³³

With a Rule 26(f) conference in January and trial on June 30, the initial disclosures fall due about two weeks after the January conference, and the pretrial disclosures fall due on May 31. An exam stem that supplies a conference date, a service date, and a trial date tests whether the student attaches the right anchor to each duty. Three errors recur: counting the 30 days from the conference or from service, treating the 30-day figure as the rule for expert disclosures, and confusing the 14-day objection window, which runs from the pretrial disclosures, with the 14 days after the conference that govern initial disclosures.

Objections and Waiver

Rule 26(a)(3)(B) gives the recipient of pretrial disclosures a short window to respond. Within 14 days after the disclosures are made, unless the court sets a different time, a party may serve and promptly file a list of two kinds of objections: objections under Rule 32(a) to the use of a deposition another party designated, and objections, with their grounds, to the admissibility of the materials another party identified as exhibits.³⁵ The targets are therefore the deposition designations and the exhibit list taught above, and the trial witness list is not among them. The two clocks also run in opposite directions. The disclosures are due at least 30 days before trial, counted backward from the trial date, while the 14 days for objections is counted forward from the day the disclosures are made.

The same sentence of the rule carries the consequence of silence. An objection not made in this way is waived, which means the party gives it up and cannot raise it at trial, unless the court excuses the failure for good cause.³⁶ The reason follows from what the window is for. If an opponent could hold an objection in reserve until the exhibit was offered, the offering party would learn of a foundation problem in front of the jury, with no chance to line up a sponsoring witness or substitute a better document, and the judge would have to rule mid-trial without preparation. A party with a ground for objection would also have an incentive to stay quiet and hope the problem could not be repaired in time. The window moves those disputes to a period when the offering party can cure what is curable and the judge can rule calmly, which serves the aim of the discovery rules to minimize surprise at trial.³⁷ Waiver gives the window its force, because a deadline that costs nothing to miss invites a party to wait.

A party that spots a problem with an opponent’s exhibit and saves it for trial has made exactly the move that waiver forecloses.

A buyer who acts inside the window ends up in a different position.

The rule’s text attaches the grounds to the admissibility objection, and that requirement fits the window’s purpose. An objection that announced a complaint without naming it would give the offering party nothing to cure, so the ground is what turns the objection into notice. The rule also places the power to excuse a missed objection in the court and states the standard only as good cause. Because waiver is the default, a party that has missed the window must ask the court for relief and cannot assume the objection survives.

Two kinds of objection escape the waiver. The rule excepts objections under Federal Rule of Evidence 402 or 403, so a party that stays silent through the window can still raise at trial a relevance objection, or an objection that an exhibit’s probative value is substantially outweighed by the danger of unfair prejudice.³⁸ One way to understand the exception, offered as a teaching account and not as anything the rule says, is that these objections depend on context the pretrial period may not reveal. Whether evidence is relevant, and how its probative value weighs against its risks, turns on what the issues look like when the evidence is offered and on what proof the jury has already heard. Objections such as hearsay or lack of foundation can usually be judged from the exhibit and its sponsoring witness, which makes them suitable for early resolution. Nothing stops a party from including a Rule 402 or 403 objection in its list if it wants an early ruling, but leaving it out forfeits nothing. The exception is also narrow. Only the two named rules qualify, so an objection that is really about hearsay does not escape waiver by being described as prejudice.