Alaska discovery: disclose the factual basis of your case, 30 interrogatories, and three experts per issue

Alaska runs a mandatory-disclosure system, and its disclosure list is longer than the federal one. Before anybody serves a single request, each party has to hand over the factual basis of its case, its witness statements, its photographs, its damages computation and its list of everyone else it says is at fault.

Then the request-based discovery begins, on its own set of numbers.

What you have to disclose without being asked

Rule 26(a)(1) requires each party, without awaiting a discovery request, to provide to the other parties:

(A) the factual basis of each of its claims or defenses; (B) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information and whether the attorney-client privilege applies; (C) the name and, if known, the address and telephone number of each individual who has made a written or recorded statement and, unless the statement is privileged or otherwise protected from disclosure, either a copy of the statement or the name and, if known, the address and telephone number of the custodian; (D) subject to the provisions of Civil Rule 26(b)(3), a copy of, or a description by category and location of, all documents, electronically stored information, data compilations, and tangible things that are relevant to disputed facts alleged with particularity in the pleadings; (E) subject to the provisions of Civil Rule 26(b)(3), all photographs, diagrams, and videotapes of persons, objects, scenes and occurrences that are relevant to disputed facts alleged with particularity in the pleadings; (F) each insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment; (G) all categories of damages claimed by the disclosing party, and a computation of each category of special damages, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such claims are based, including materials bearing on the nature and extent of injuries suffered; and (H) the identity, with as much specificity as may be known at the time, of all potentially responsible persons within the meaning of AS 09.17.080, and whether the party will choose to seek to allocate fault against each identified potentially responsible person.

Subparagraphs (A), (C), (E) and (H) have no counterpart in Federal Rule 26(a)(1). Together they change what the opening weeks of an Alaska case look like.

(A) is the broadest. "The factual basis of each of its claims or defenses" is a narrative obligation, not a document list. It arrives before any interrogatory has been served.

(C) hands over witness statements — the material a party in most systems would resist producing as work product, subject only to the Rule 26(b)(3) carve-out.

(H) forces the allocation decision early. Alaska apportions fault among all potentially responsible persons, including non-parties, and the disclosure requires you to say both who they are and whether you will actually seek allocation against each of them.

When: unless the court directs otherwise, "at or within 10 days after the meeting of the parties under subsection (f)."

And no excuses — Rule 26(a)(1): a party makes its disclosures "based on the information then reasonably available to it and is not excused … because it has not fully completed its investigation … or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures."

Disclosure is not reciprocal in the sense of conditional. You disclose whether or not they do.

Who is exempt — Rule 26(a): the categories of cases exempted from scheduling conferences and orders under Rule 16(g), adoption proceedings, and prisoner litigation against the state under AS 09.19.

Form — Rule 26(a)(4): disclosures under (a)(1) and (a)(2) are made in writing, signed, and served under Rule 5.

Expert disclosure — and the three-expert cap

Rule 26(a)(2)(A): each party discloses the identity of any person who may be used at trial to present evidence under Evidence Rules 702, 703 or 705.

Rule 26(a)(2)(B): for a witness retained or specially employed to provide expert testimony, or whose employment duties regularly involve giving expert testimony, the disclosure is accompanied by a written report prepared and signed by the witness, containing:

• a complete statement of all opinions and the basis and reasons for them;
• the data or other information considered in forming them;
• any exhibits to be used as a summary of or support for the opinions;
• the witness's qualifications, including all publications within the preceding ten years;
• the compensation to be paid for the study and testimony; and
• a list of any other cases in which the witness testified as an expert at trial or by deposition within the preceding four years.

The cap — Rule 26(a)(2)(D):

No more than three independent expert witness may testify for each side as to the same issue in any given case. For purposes of this rule, an independent expert is an expert from whom a report is required under section (a)(2)(B). The court, upon the showing of good cause, may increase or decrease the number.

Three per side, per issue, counting only report-producing experts. Neither the federal rules nor any other jurisdiction on this site fixes a number by rule.

Note also that it is three per side, not per party. Multiple aligned defendants share the allowance unless the court says otherwise.

Pretrial disclosures

Rule 26(a)(3) requires disclosure, at the times and in the sequence the court directs, of evidence a party may present other than solely for impeachment: witness names, separating those expected from those who may be called; deposition designations, with transcripts of the pertinent portions where not taken stenographically; and identification of each exhibit, again separating expected from possible.

Within 14 days thereafter, unless a different time is specified by the court, a party may serve and file a list disclosing (i) any objections to the use under Rule 32(a) of a deposition designated by another party under subparagraph (B), and (ii) any objection, together with the grounds therefor, that may be made to the admissibility of materials identified under subparagraph (C). Objections not so disclosed, other than objections under Rules 402 and 403 of the Rules of Evidence, shall be deemed waived unless excused by the court for good cause shown.

Fourteen days, and the waiver is broad — everything except relevance and Rule 403 prejudice.

Scope

Rule 26(b)(1): parties may obtain discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action," whether it relates to the claim or defense of any party. The information "need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

That is the older and broader formulation. Federal Rule 26(b)(1) was narrowed in 2015 to information relevant to a claim or defense and proportional to the needs of the case, and the reasonably-calculated language was removed. Alaska kept both.

Limits — Rule 26(b)(2)(A): the court may alter the limits on the number of depositions and interrogatories, deposition length under Rule 30, and the number of Rule 36 requests. It shall limit discovery on finding that it is unreasonably cumulative or duplicative or obtainable more conveniently elsewhere; that the party has had ample opportunity to obtain the information; or that the burden or expense outweighs the likely benefit, taking account of the needs of the case, the amount in controversy, the parties' resources, the importance of the issues, and the importance of the discovery to resolving them.

The court may act on its own initiative after reasonable notice, or on motion.

Rule 26(b)(2)(B) carries the not-reasonably-accessible provision for electronically stored information.

When discovery may begin

Alaska ties the start of discovery to the disclosure system, and splits the answer.

In non-exempted actions — Rule 26(d)(1): a party may serve up to ten of the thirty interrogatories allowed by Rule 33(a) at the times allowed by Rule 26(d)(2)(C). "Otherwise, except by order of the court or agreement of the parties, a party may not seek discovery from any source before the parties have met and conferred as required by paragraph (f)."

So there is a gate, and there is one door through it: ten early interrogatories.

In exempted actions — Rule 26(d)(2):

• oral depositions: a defendant may depose at any time after commencement; the plaintiff needs leave to depose before 30 days after service of the summons and complaint on any defendant, unless a defendant has already noticed a deposition or sought discovery, or the deposition is under Rule 30(a)(2)(C);
• depositions on written questions: any party, any time after commencement;
• interrogatories, requests for production and requests for admission: may be served on the plaintiff at any time after commencement, and on any other party with or after service of the summons and complaint.

The meeting of the parties

Rule 26(f): except where otherwise ordered and except in exempted actions, the parties shall meet "as soon as practicable and in any event at least 14 days before a scheduling conference is held or a scheduling order is due under Rule 16(b)."

The meeting covers the nature and basis of the claims and defenses, the possibilities for prompt settlement or resolution including whether an alternative dispute resolution procedure is appropriate, making or arranging the Rule 26(a)(1) disclosures, and developing a proposed discovery plan and a proposed alternative dispute resolution plan.

The plan states the parties' views on changes to the timing or form of disclosures and appropriate intervals for supplementation; the subjects on which discovery is needed, when it should be completed, and whether it should be phased; disclosure or discovery of electronically stored information, including the form; what changes should be made to the discovery limits; and the ADR plan and its timing.

An ADR plan is a required output of the Rule 26(f) meeting in Alaska, not an optional topic.

Thirty days across the board — and thirty interrogatories

Rule 33(a): "Without leave of court or written stipulation, a party may serve only thirty interrogatories upon another party, including all discrete subparts. This limit includes interrogatories served under Rule 26(d)(1)." Leave for more "shall be granted to the extent consistent with the principles of Rule 26(b)(2)."

Thirty rather than the federal twenty-five — and the ten you may serve early come out of the same thirty.

Rule 33(a) also requires drafting room: "There shall be sufficient space provided so that answers to the interrogatories propounded may be inserted thereon." As in Washington's CR 33(a), the obligation falls on the party serving.

Objections are waived if not specific — Rule 33(b)(4): "All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown."

Both halves matter: the objection must be timely, and it must be specific. A boilerplate objection preserves nothing.

Signatures — Rule 33(b)(2): answers are signed by the person making them; objections by the attorney.

Contention interrogatories — Rule 33(c): an interrogatory is not objectionable merely because the answer involves an opinion or contention relating to fact or the application of law to fact, but the court may order that it need not be answered until designated discovery is complete, or until a pretrial conference or later time.

Business records — Rule 33(d): where the answer may be derived from business records, including ESI, and the burden of deriving it is substantially the same for both sides, it is a sufficient answer to specify the records and afford a reasonable opportunity to examine them.

Production — Rule 34(b): requests describe items by individual item or category, "with reasonable particularity," and specify a reasonable time, place and manner. Unless otherwise agreed or ordered, documents are produced as kept in the usual course of business or organised and labelled to correspond to the categories in the request. Where no form for ESI is specified, it is produced as ordinarily maintained or in a reasonably usable form.

Admissions — Rule 36(a): each matter separately set forth, and "the matter is admitted unless, within 30 days after service of the request … the party … serves … a written answer or objection." A denial "shall fairly meet the substance of the requested admission," and a party may not plead lack of information "unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable is insufficient."

A party who thinks the request presents a genuine issue for trial "may not, on that ground alone, object"; the remedy is to deny, subject to Rule 37(c) cost-of-proof consequences.

Rule 36(b): an admission is conclusively established unless the court permits withdrawal or amendment, which it may do where the presentation of the merits will be subserved and the party who obtained the admission fails to show prejudice.

Supplementation

Rule 26(e)(1): a party must supplement its disclosures at appropriate intervals if it learns that in some material respect the information disclosed is incomplete or incorrect and the corrective information has not otherwise been made known during discovery or in writing. For an expert from whom a report is required, the duty extends both to the report and to information provided in the expert's deposition.

Rule 26(e)(2): the same duty to seasonably amend applies to interrogatory answers, responses to requests for production and responses to requests for admission.

How Alaska compares

A short checklist

1. Start the disclosure work before anyone asks. The factual basis of your claims and defenses, witness statements, photographs and a damages computation are all due at or within 10 days of the Rule 26(f) meeting.
2. Make the allocation decision early. Rule 26(a)(1)(H) requires you to name potentially responsible persons and say whether you will seek to allocate fault against each.
3. Do not wait for the other side. The rule says non-disclosure by others is not an excuse.
4. Budget your thirty interrogatories, remembering that discrete subparts count and that any early ones under Rule 26(d)(1) come out of the same thirty.
5. Leave answer space in interrogatories you serve.
6. Object specifically and on time. Rule 33(b)(4) waives anything else.
7. Plan your experts against the three-per-side cap and get the reports right — opinions, bases, data, exhibits, qualifications, ten years of publications, compensation, four years of prior testimony.
8. Calendar 14 days after pretrial disclosures for objections. Everything but relevance and Rule 403 is waived otherwise.
9. Bring an ADR proposal to the Rule 26(f) meeting. It is a required part of the plan.

Where these rules live

• Alaska R. Civ. P. 16 — Pretrial conferences; scheduling; management
• Alaska R. Civ. P. 26 — General provisions governing discovery; duty of disclosure
• Alaska R. Civ. P. 29 — Stipulations regarding discovery procedure
• Alaska R. Civ. P. 30 — Depositions upon oral examination
• Alaska R. Civ. P. 33 — Interrogatories to parties
• Alaska R. Civ. P. 34 — Production of documents and electronically stored information
• Alaska R. Civ. P. 36 — Requests for admission
• Alaska R. Civ. P. 37 — Failure to make disclosure or cooperate in discovery: sanctions
• Alaska R. Civ. P. 56 — Summary judgment

This page explains what the rules say. It isn't legal advice, and AS 09.17.080 — Alaska's fault allocation statute — is not reproduced on this site.