Tennessee’s Advisory Commission on the Rules of Practice & Procedure has recommended significant changes to Rule 26, which governs pretrial discovery.

Mandatory disclosures. The proposal would create a new Rule 26.07 that will require these mandatory disclosures in all civil cases:

• provide identifying information for all persons likely to have relevant information along with a brief description of the specific information each person is believed to possess;
• provide a copy or a description of all relevant documents, electronically stored information, or other tangible things as if a Rule 34 request for production had been served;
• describe all damages for which the party is seeking compensation and produce relevant documents or other evidence; and
• produce copies of all documents referenced in the pleadings.

Divorce cases. Besides the foregoing, the proposed rule requires these additional disclosures in all divorce actions:

• identify each asset or liability in which the party claims any interest, its value and the basis for determining its value, and whether the party claims it is marital or separate property;
• produce a detailed summary of the party’s regular and recurring monthly expenses;
• state the party’s year-to-date income; and
• produce the last two years of the party’s federal income tax returns with all schedules and attachments.

Exceptions. The mandatory disclosures are not required for:

• divorce actions where parties file an executed marital dissolution agreement and permanent parenting plan before the deadline to serve mandatory disclosures;
• actions to register or domesticate a foreign judgment; or
• actions brought under the Uniform Child Custody Jurisdiction and Enforcement Act.

Timing. The plaintiff must serve mandatory disclosures within 30 days following the filing of the defendant’s answer. The defendant must serve mandatory disclosures within 30 days following filing its answer.

Filing. Mandatory disclosures are not filed with the court.

Supplementation. Mandatory disclosures are required based on the information reasonably available to the party.

A party is not excused from making its disclosures because it has not fully investigated the case, or because the party challenges the sufficiency of another party’s disclosures, or because another party has not complied with its obligation to make mandatory disclosures.

Parties must seasonably supplement or amend prior disclosures if:

• they know that prior disclosure was incorrect when made or is no longer true;
• new information and evidentiary material has been obtained; and
• 60 days before trial or 30 days before a court-ordered discovery cutoff, whichever is earlier.

Objections. The proposed rule does not prevent a party from asserting an objection per Rule 26.02.

Additional discovery. The proposed rule does not prevent or restrict the ability to obtain additional discovery under the Rules of Civil Procedure.

Sanctions. Failing to provide mandatory disclosures on time may cause sanctions under Rule 37.

Advisory Commission Comments. The Commission acknowledges that the proposed rule creates “the functional equivalent of court-ordered interrogatories” and “the functional equivalent of a standing Request for Production under Rule 34.” The stated purpose is “to accelerate the exchange of information about the case and to eliminate the paper work [sic] involved in requesting such information . . . .”

Before making its disclosures, a party has the obligation to make a reasonable inquiry into the facts of the case. The Rule does not demand an exhaustive investigation at this stage of the case, but one that is reasonable under the circumstances, focusing on the facts that are alleged in the pleadings.

The Tennessee Supreme Court wants to hear your comments on these proposed changes. The deadline for submitting written comments is December 13, 2019. Email your comments to appellatecourtclerk@tncourts.gov.

Melody’s Comment: Our paralegal, Melody, works with our clients to assemble their discovery production. Here’s what she has to say about this proposal:

These are a good baseline start to production that does not seem to go beyond what every divorce would need to know/disclose, so that’s good. It does not include some things we typically want to know or receive. So, we will likely have to wait until the mandatory disclosures are received (assuming they are timely provided), determine what from our “standard” set of discovery requests was not provided, and then submit a separate set of requests for those items. This might delay the receipt of discovery by delaying the submission of discovery requests we would have otherwise sent at the very beginning.

I’m also concerned about the timelines and deadlines. Working people and parents often have difficulty finding the time to track down old records. We must start them on that as soon as we meet with them. We basically do that already, but this will require us to make it part of our process in every case.

K.O.’s Comment: Let me start by acknowledging that I am unconsciously predisposed to oppose change. A short walk around downtown Knoxville reminds me of all the things I was against until they happened, and I realized how they made things better. So, it’s in my DNA to oppose anything new.

Not surprisingly, my initial reaction is to oppose this change. This could increase the cost of litigation for low-income parties who can barely afford representation in the first place. The wealthy will be unaffected, of course.

How does this rule interact with the new rule requiring that the basis for objections be stated with specificity? If a party objects to producing relevant information, must the party state the objection in the mandatory disclosure or wait until the other party specifically requests it? Must the party state in the mandatory disclosure whether information is being withheld under the objection?

More limited mandatory disclosures have worked well in federal court. Also, certain family-law attorneys are, shall we say, less than diligent. Anything that spurs them into action is welcome. But one need not be psychic to foresee disclosures slapped together at the last minute that are woefully incomplete, resulting in more delays and requiring more specific discovery requests or motions to compel.

Bottom line: I have mixed feelings about this proposal.

What do you think? Share your thoughts in the comments below. Readers are interested in your opinion.

Source: Proposed Amendments to Tennessee Rules of Civil Procedure (Tennessee Supreme Court, August 13, 2019).