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.

 Rule 1 Advisory Committee Notes:  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.

 Initial disclosures expanded to include:  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  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.

 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 Defendant 14d 28d Initial Disclosures Due Standard Fact Discovery Begins Initial Disclosures Due (unless you appeared later, then due 28d from that date) 120d 180d 210d Tier 1Tier 2Tier 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.

 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.

 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.

* Amount of damages is the total of all monetary damages (without duplication for alternative theories) sought by all parties in all claims 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.

 Standard fact discovery per side (plaintiffs collectively, defendants collectively, and third- party 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.

 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  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.

 Motion for extraordinary discovery  Before close of standard discovery AND after reaching limits of standard discovery  Stipulated statement saying:  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.

 All experts must be disclosed just after discovery deadline: Retained and Non-Retained  No discovery requests, automatic  For retained experts, provide:  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.

 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.

 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.

 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.

Party without Burden of Proof Party with Burden of Proof 7d 28d Initial Expert Disclosure Due End Fact Discovery 7d Elect Depo OR Report (or no further discovery on expert) 7d 28d Take Expert’s Deposition Turn over Expert Report Elect Depo OR Report (or no further discovery on expert) Take Expert’s Deposition 28d Initial Expert Disclosure Due Turn over Expert Report 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.

 Without waiting for a request, a party will disclose:  Will-call witnesses and may-call witnesses, unless for impeachment  Deposition transcript witnesses with designated testimony  Exhibits, including charts  Timing is 28 days before trial  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.

 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.

 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.

 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.

 Response must  restate the question or request and  is due within 28 days after service rather than 30 for:  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.

 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.

 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.

 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.

1. 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; 2. Likely benefits outweigh burden or expense; 3. Consistent with the overall case management and will further the just, speedy and inexpensive determination of the case; 4. Not unreasonably cumulative or duplicative ; 5. Information cannot be obtained from another source that is more convenient, less burdensome, or less expensive; and 6. 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.