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IP: 4 ways to avoid the Rule 26 trap

In a recent case, the failure to disclose a witness disqualified that witness from testifying

Litigating in federal courts requires adherence to the Federal Rules of Civil Procedure. One noteworthy rule is Rule 26 (a)(1), which provides for an initial disclosure of, among other things, the identity of individuals likely to have discoverable information. However, a failure to meet the obligations of that rule could have some serious ramifications, as seen in the recent case of Gen-Probe, Inc. v. Becton Dickson & Co.. There, the court prohibited a witness from testifying at trial because that witness was not identified in the initial disclosures.

Rule 26(a)(1)(A)(i) requires a party to disclose “the name and, if known, address and telephone number of each individual likely to have discoverable information…that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment…” The rule also requires that the subject matter of the likely discoverable information be described.

This qualifier itself may pose some problems. Because Rule 26(a)(1)(A)(i) requires that the disclosure of the identity of the person have information about a claim or defense and a description of that information, a disclosure that does not meet these requirement does not comport with the rule. Thus, if a person’s identity is fronted in a deposition, that alone may be insufficient.

All of this leads to what result that may occur if a party does not meet the requirements of Rule 26(a). As stated in Rule 37(c)(1):

Contributing Author

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Donald Rupert

Donald W. Rupert is a litigation partner at Marshall, Gerstein & Borun LLP.  For over 35 years, Don has litigated patent and other...

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