Don’t Ignore the Plain Text of Rule 26(a)

The drafters of the Federal Rules of Civil Procedure did not add words as filler for Rule 26(a)(1). Litigants are required to disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information.” Furthermore, parties must provide copies or descriptions of “all documents, electronically stored information, and tangible things” that support their claims or defenses.

One party…did not follow the rules. The disclosing party listed “corporate representative[s]” from unnamed third parties as “any billing/management vendors of the Defendants.” Rightchoice Managed Care, Inc. v. Hosp. Partners, Inc., 2019 U.S. Dist. LEXIS 16344, at *10 (W.D. Mo. Feb. 1, 2019). The information held by these unnamed entities was merely listed in very general terms as “the allegations of the complaint.” Id. The contact information for these unnamed individuals from unnamed third parties were in the care of counsel. Id.

The Court found the disclosing party did not comply with Rule 26(a)(1) and ordered them to supplement their initial disclosures with the specific names and contact information, if known, of individuals likely to have discoverable information. The disclosing party was also ordered to provide copies, or a detailed list, by category and location, all documents, electronically stored information, and tangible things in their possession, custody, or control that they may use to support their claims or defenses. Rightchoice, at *11.

Bow Tie Thoughts

Initial disclosures are not supposed to be vague meaningless statements. Reasonableness, not perfection, is the standard in discovery. This means parties have an obligation to supplement their disclosures or discovery responses Rule 26(e) if they learn new information. However, that does not give a party license to provide initial disclosures so nondescript that they are gobbledygook.

eDiscovery review applications can make fulfilling initial disclosure obligations easier with detailed descriptions of electronically stored information. A party can select the ESI that is to be included in their initial disclosures. Virtually all review applications have the ability to export a CSV or Excel file that contains file names, file pathways, custodian, date created, who created the ESI, MD5 hash values, and similar metadata. Such information can describe with specificity ESI that supports a party’s claims or defenses. Email could also be disclosed in a similar fashion. While there are multiple ways to accomplish the goal of describing ESI to comply with Rule 26(a), leveraging the basic features of review applications can make the job easier.