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Tennessee’s Proposed Amendments to Rule 26 Mandate Broad Initial Disclosures

In contrast to Federal Rule of Civil Procedure 26(a)(1), the Tennessee Rules of Civil Procedure do not require initial disclosures—but that could be changing soon.  On August 13, 2019, the Tennessee Supreme Court issued an order soliciting written comments regarding amendments to Tennessee Rule of Civil Procedure 26 proposed by the Advisory Commission on the Rules of Practice & Procedure.  While the proposed amendments recommend a number of changes pertaining to discovery, one of the most drastic proposals mandates initial disclosures in discovery that surpass the scope of the corresponding federal rule to encompass information relevant to the claims or defenses of any party.

Under Federal Rule of Civil Procedure 26(a)(1)(i) and (ii), each party must initially disclose information pertaining to individuals likely to have discoverable information and documents—but only insofar as that party “may use” such individuals and documents “to support” that party’s own “claims or defenses.”  In contrast, Tennessee’s proposed amendments regarding relevant individuals and documents require the following of each party:

(A) the name and, if known, the last known address, telephone number, and email address of each person likely to have information relevant to the claims or defenses of any party, whether or not supportive of the disclosing party’s claims or defenses, along with a brief description of the specific information that each such person is known or believed to possess;

(B) a listing, together with a copy of, or a description by category, of the subject matter and location of all documents, photographs and similar visuals, electronically stored information, data compilations, and other tangible things in the possession, custody or control of the party that are relevant to the claims or defenses of any party, whether or not supportive of the disclosing party’s claims or defenses, making available for inspection and copying such documents and other evidentiary material, as though a request for production of those documents had been served pursuant to Rule 34;

Tenn. R. Civ. P. 26.07(A)-(B) (proposed Aug. 13, 2019) (emphasis added).  The Advisory Commission’s Comments acknowledge that the proposed disclosures “are broader than those now required under Fed. R. Civ. P. 26(a)(1)(A)(i) and (ii),” which “are limited to matters which the disclosing party might use to support its claims or defenses.”  Addressing subsections (A) and (B) specifically, the Advisory Commission’s Comments indicate that these proposed disclosure requirements “are intended to be limited to identification of potential evidence relevant to disputed facts alleged in the pleadings.”

While a number of states require some degree of initial disclosures, only a handful mandate initial disclosures broader in scope than the federal rule.  Interestingly, the Comments on Tennessee’s proposed amendments are almost identical to portions of the federal Advisory Committee on Civil Rules’s Comments to the 1993 Amendment (which was significantly curtailed in 2000). The language in proposed Tenn. R. Civ. P. 26.07(1)(A)-(B) also closely tracks Colorado’s similar rule, Colo. R. Civ. P. 26(a)(1)(A)-(B).  Furthermore, the federal Advisory Committee launched the three-year Mandatory Initial Discovery Pilot Project in May 2017, which has been implemented in two district courts (in Arizona and Illinois) and requires initial disclosures to include “both favorable and unfavorable information that is relevant to the claims and defenses in the case.”  While Tennessee clearly seems to be following a trend among federal and state courts of moving slowly toward broader initial disclosures, the effects of expanding the scope of disclosures remain unclear.  Regardless, if Tennessee’s proposed amendments are adopted, parties should be prepared to begin the discovery process much earlier and more extensively in the litigation.