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Discovery – General

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Local Rule Number: 
Rule 7026-1
7000 Series

(A)       Affirmative Disclosure Requirements.  Except as otherwise ordered by the court, the provisions of Fed. R. Civ. P. 26(a), (d) and (f) apply to cases and proceedings in this court only to the extent set forth in the “Order Setting Scheduling Conference and Establishing Procedures and Deadlines,” and “Order Setting Filing and Disclosure Requirements for Pretrial and Trial”.

☞ 2022 Amendment:  Local Rule 7026-1(A) is amended as Interim Local Rule 7026-1(A) to conform to revisions to court's forms "Order Setting Scheduling Conference and Establishing Procedures and Deadlines" and "Order Setting Filing and Disclosure Requirements for Pretrial and Trial. (See Administrative Order 2022-02).

(B)       Subpoena Forms.  Subpoenas served in adversary proceedings or main cases must conform to, as applicable, the Administrative Office of the U.S. Courts Director’s Procedural Form “Subpoena to Appear and Testify at a Hearing or Trial in a Bankruptcy Case (or Adversary Proceeding)”, the Administrative Office of the U.S. Courts Director’s Procedural Form “Subpoena to Testify at a Deposition in a Bankruptcy Case (or Adversary Proceeding)” or the Administrative Office of the U.S. Courts Director’s Procedural Form “Subpoena to Produce Documents, Information, or Objects or To Permit Inspection of Premises in a Bankruptcy Case (or Adversary Proceeding)”.

(C)       Service and Filing of Discovery Material.  The following discovery requests and responses:

–           notices of deposition upon oral examination;

–           transcripts of deposition upon oral examination;

–           depositions upon written questions;

–           responses or objections to depositions upon written questions;

–           written interrogatories;

–           answers or objections to written interrogatories.

–           requests for production of documents or to inspect any tangible thing;

–           objections to requests for the production of documents or to inspect any tangible thing;

–           written requests for admission; and

–           answers or objections to written requests for admission;

must be served upon other attorneys and parties, but are not to be filed with the court, nor may any proof of service be filed, unless upon order of the court or as provided in subdivision (D).  The party responsible for service of the discovery material must retain the original and become the custodian.  The original of all transcripts of depositions upon oral examination must be retained by the party taking the depositions.

(D)       Filing of Discovery Materials Permitted in Certain Circumstances.  If depositions, interrogatories, requests for documents, requests for admission, answers or responses are to be used at an evidentiary hearing or trial or are necessary to a pretrial or post-trial motion, the portions to be used must be filed with the clerk at the outset of the evidentiary hearing or trial or at the filing of the motion insofar as their use can be reasonably anticipated by the parties having custody of the materials.  When documentation of discovery not previously in the record is needed for appeal purposes, upon order of the court or by written stipulation of attorneys, the necessary discovery papers may be filed with the clerk.

(E)        Discovery Disputes. Motions to Compel, Motions for Protective Order, Required Certification.

(1)     Discovery Disputes.  If a discovery dispute occurs, the parties must first, as required by Fed. R. Civ. P. 37(a)(1), as incorporated by Fed. R. Bankr. P. 7037, confer in good faith to attempt to resolve the issues.

(2)     Motions to Compel.  Except for motions grounded upon complete failure to respond to the discovery sought to be compelled, or upon assertion of general or blanket objections to discovery, motions to compel discovery in accordance with Bankruptcy Rules 7033, 7034, 7036 and 7037, must quote verbatim each interrogatory, request for admission or request for production and the response to which objection is taken followed by: (a) the specific objections, (b) the grounds assigned for the objection (if not apparent from the objection); and (c) the reasons assigned as supporting the motion, all of which must be written in immediate succession to one another.  Such objections and grounds must be addressed to the specific interrogatory or request and may not be made generally.

(3)     Motions for Protective Order.  A party may file, before to the date of a proposed deposition or other discovery deadline, a motion for a protective order stating the reasons for prohibiting, limiting or rescheduling the deposition or other discovery request.  The filing of a motion for protective order stays the deposition or response deadline shall be stayed until the court rules on the motion.

(F)     Certificate of Attorney as to Motion to Compel or Motion for Protective Order.  Before filing a motion to compel discovery or a motion for protective order pursuant to Bankruptcy Rule 7026, the attorney for the moving party must confer with the attorney for the opposing party and must file with the clerk at the time of filing the motion a statement certifying that the movant’s attorney has conferred with the attorney for the opposing party in a good faith effort to resolve by agreement the issues raised and that the attorneys have been unable to do so.  If certain of the issues have been resolved by agreement, the statement must specify the issues so resolved and the issues remaining unresolved.

☞ 2020 Amendment: Revisions to Local Rule 7026-1 (as to subsections A-F only) make this rule consistent with the Court’s adoption of a new form of pretrial order and a new form status conference order. The revisions also include a new subsection (E)(1) addressing discovery disputes.

(G)        Assertion of Privilege.

(1)     Where a claim of privilege or protected work product is asserted in objecting to any interrogatory or production demand, or sub-part thereof, and a complete answer is not provided on the basis of such assertion, the party asserting the privilege or protected work product:

(a)     must identify the nature of the privilege or protected work product being claimed; and

(b)     must provide in the objection the following information, unless divulgence of such information would cause disclosure of the allegedly privileged or protected information:

(i)     For documents or electronically stored information, to the extent the information is readily obtainable: (1) the type of document (e.g., letter or memorandum) and, if electronically stored information, the software application used to create it (e.g., MS Word, MS Excel); (2) general subject matter of the document or electronically stored information; (3) the date of the document or electronically stored information; and (4) such other information as is sufficient to identify the document or electronically stored information, including, where appropriate, the author, addressee, and any other recipient of the document or electronically stored information, and, where not apparent, the relationship of the author, addressee, and any other recipient to each other;

(ii)     For oral communications: (1) the name of the person making the communication and the names of persons present while the communication was made and, where not apparent, the relationship of the persons present to the person making the communication; (2) the date and the place of communication; and (3) the general subject matter of the communication.

(2)     This rule requires preparation of a log with respect to all documents, electronically stored information, things and oral communications withheld on the basis of a claim of privilege or work product protection; provided, however, written and oral communications between a party and its counsel made or work product material created after the commencement of the adversary proceeding or contested matter need not be logged absent a court order providing otherwise.

(3)     Efficient means of providing information regarding claims of privilege and protected work product are encouraged, and parties are encouraged to agree upon measures that further this end. For example, when asserting privilege or protected work product on the same basis with respect to multiple documents, notwithstanding the other provisions of this rule, it is presumptively proper to provide the information required by this rule by group or category. A party receiving a log that groups documents or otherwise departs from a document-by-document or communication-by-communication listing for alleged privileged or protected work product may not object solely on that basis, but may object if the substantive information required by this rule has not been provided in a comprehensible form.

☞ 2020 Amendment: Local Rule 7026-1 creates new Section “G” – Assertion of Privilege.  Subsections (1) and (2) of new Section (G) was derived from Southern District of Florida Local Rule 26-1(e)(2) regarding privilege logs including the exclusion of communications between counsel after the filing of the litigation. Subsection (3) of new Section (G) was derived from Southern District of New York Local Rule 26.2(c) regarding the use of “categorical” privilege logs.  See also   Rule 26 advisory committee notes of the 1993 amendment (“The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories”).