Hawaii discovery: initial disclosures in 14 days, 45 days for a defendant, and 60 interrogatories

Hawaii runs a mandatory-disclosure system with six exempt case types, then allows the largest interrogatory set of any jurisdiction on this site. A defendant served at the outset gets 45 days to answer written discovery — more than Washington's 40 and Georgia's 45-day model for interrogatories, and unusual in extending to admissions as well.

What you disclose without being asked

Rule 26(a)(1)(A): except in the exempt categories or as stipulated or ordered, a party must, without awaiting a discovery request, provide to all other parties:

(i) the name and, if known, the address and telephone number of all witnesses, other than those retained or specially employed by the disclosing party to present evidence under Rule 702 of the Hawai'i Rules of Evidence or those whose duties as the disclosing party's employee regularly involve giving such testimony, reasonably expected to be called at trial by the disclosing party, and a general statement concerning the nature of the testimony expected, unless the use would be solely for impeachment; (ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control that may be used to support the disclosing party's claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 of these Rules the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34 of these Rules: (a) the declarations page(s) of any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment; and (b) any reservation of rights letter(s) received by the disclosing party.

Two items are worth marking.

(i) is broader than the federal equivalent. FRCP 26(a)(1)(A)(i) asks for individuals likely to have discoverable information the party may use. Hawaii asks for all witnesses reasonably expected to be called at trial, plus a statement of what they will say. That is closer to a witness list than to a contacts list.

(iv)(b) — reservation of rights letters. Hawaii requires the declarations page and any reservation of rights letter. No other jurisdiction on this site requires the second.

The exempt cases — Rule 26(a)(1)(B). Six categories are exempt from initial disclosure:

(i) foreclosure; (ii) cases included in and not exempted from the Court Annexed Arbitration Program; (iii) agency appeals; (iv) consumer debt collection; (v) quiet title; and (vi) asbestos.

Check this list first. In an exempt case there are no initial disclosures at all, and the whole sequence below does not apply.

Timing — Rule 26(a)(1)(C) and (D): initial disclosures are due at or within 14 days after the parties' Rule 26(f) conference, unless a different time is set by stipulation or court order, or unless a party objects during the Rule 26(f) conference that initial disclosures are not appropriate and states the objection in the proposed discovery plan.

Where an objection is made, the court rules on it at the scheduling conference held under Rule 16 and Rule 12 of the Rules of the Circuit Courts, determines what disclosures are to be made, and sets the time.

A party joined later must make its initial disclosures within 30 days after being served or joined, unless a different time is set.

Scope

Rule 26(b)(1)(A): 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 any party's claim or defense, including the existence, description, nature, custody, condition and location of books, documents, electronically stored information or tangible things, and the identity and location of persons having knowledge of any discoverable matter.

"It is not ground for objection that the information sought will be inadmissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."

That is the older, broader formulation — the same one Alaska retains. Federal Rule 26(b)(1) was narrowed in 2015 to matter relevant to a claim or defense and proportional to the needs of the case, and the reasonably-calculated sentence was deleted. Hawaii kept both.

Expert discovery

Depositions — Rule 26(b)(4)(A): a party may depose any person identified as an expert whose opinions may be presented at trial. Where a report is required, "the deposition may be conducted only after the report is provided." Expedited-track cases are subject to Rule 16.1.

Draft reports are protected — (B): trial-preparation protection covers "drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded."

Attorney–expert communications are protected — (C), "regardless of the form of the communications," except to the extent they:

(i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

Those three exceptions are the whole of what is discoverable about the lawyer–expert relationship. Everything else — the drafts, the discussions — is protected.

Non-testifying experts — (D): facts known or opinions held by an expert retained or specially employed in anticipation of litigation and not expected to testify are discoverable, by interrogatories or deposition, only as Rule 35(b) provides or "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."

Contrast Oregon, whose ORCP contain no expert discovery provision at all, and whose ORCP 47 E lets a party defeat summary judgment with an attorney's affidavit about an unnamed expert.

The written discovery clocks

Interrogatories — Rule 33(a): without leave or written stipulation, "not exceeding 60 in number, counting any subparts or subquestions as individual questions." Sixty is the largest allowance on this site — more than double the federal 25 and twice Alaska's 30 — but the counting rule is strict, so a compound question is several interrogatories.

Requests for production — Rule 34(b): may be served on the plaintiff after commencement, and on any other party with or after service of the summons and complaint. The request sets forth items "either by individual item or by category" and describes each "with reasonable particularity," and must "specify a reasonable time, place, and manner" of inspection.

The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant.

Requests for admission — Rule 36(a): each matter separately set forth, and "the matter is admitted unless, within 30 days after service of the request," a written answer or objection is served — "but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before" the period the rule provides.

A shorter or longer time may be directed by the court, or agreed in writing by the parties subject to Rule 29.

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: timely, and specific.

Supplementation: a narrow duty

Rule 26(e) starts from the opposite premise to Washington's CR 26(e):

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the party's response to include information thereafter acquired, except as follows:

(1) — two topics carry an affirmative duty, seasonably, as to any question directly addressed to:

(A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the expert witness is expected to testify, and the substance of the expert witness's testimony.

(2) — and a duty to amend a prior response to an interrogatory, request for production or request for admission where the party learns the response "is in some material respect incomplete or incorrect."

So: no general supplementation duty, an affirmative one for witnesses and experts, and a corrective one for answers that turn out wrong. Compare Washington, whose CR 26(e) attaches a duty to supplement with "information thereafter acquired," full stop.

Signing discovery

Rule 26(h)(1): every discovery request, response or objection by a represented party is signed by at least one attorney of record in the attorney's individual name, with an address stated; a self-represented party signs and states an address.

The signature certifies that, after reasonable inquiry, the request, response or objection is:

(A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

Certification (C) is a proportionality certificate, and it binds the party serving discovery as much as the one resisting it.

The discovery conference

Rule 26(g): at any time after commencement the court may direct the attorneys to appear for a conference on discovery, and shall do so on motion by any party's attorney if the motion includes:

(1) a statement of the issues as they then appear; (2) a proposed plan and schedule of discovery; (3) any limitations proposed; (4) any other proposed orders; and (5) a statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys.

Notice goes to all parties, and "objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion."

Item (5) is the gate: a discovery-conference motion without a showing of a reasonable effort to agree does not oblige the court to act.

How Hawaii compares

A short checklist

1. Check the exempt list first. Foreclosure, court-annexed arbitration, agency appeals, consumer debt collection, quiet title and asbestos cases have no initial disclosures.
2. Calendar 14 days from the Rule 26(f) conference — or 30 days from being served or joined if you came in late.
3. Prepare a witness list, not a contact list. Rule 26(a)(1)(A)(i) wants everyone reasonably expected to be called, with a statement of the expected testimony.
4. Disclose the declarations page and any reservation of rights letter. Both are required.
5. Object at the Rule 26(f) conference if you say disclosures are inappropriate, and put the objection in the proposed discovery plan — the court rules on it at the scheduling conference.
6. Budget your 60 interrogatories knowing that every subpart counts.
7. Check the 45-day rule before assuming a defendant is late. It covers interrogatories, document requests and admissions.
8. Object specifically and on time. Rule 33(b)(4) waives anything else.
9. Remember what you must supplement — the identity and location of knowledgeable persons, your expert witnesses and their expected testimony, and any answer that turns out materially incomplete or incorrect.
10. Get the expert's report before noticing the deposition. Where a report is required, the deposition cannot precede it.
11. Before moving for a discovery conference, try to agree — and say in the motion what you did.

Where these rules live

• Haw. R. Civ. P. 16 — Pre-trial conferences; scheduling; management
• Haw. R. Civ. P. 26 — General provisions governing discovery
• Haw. R. Civ. P. 29 — Stipulations regarding discovery procedure
• Haw. R. Civ. P. 30 — Depositions upon oral examination
• Haw. R. Civ. P. 33 — Interrogatories to parties
• Haw. R. Civ. P. 34 — Production of documents, electronically stored information and tangible things
• Haw. R. Civ. P. 35 — Physical and mental examination of persons
• Haw. R. Civ. P. 36 — Requests for admission
• Haw. R. Civ. P. 37 — Failure to make or cooperate in discovery; sanctions
• Haw. R. Civ. P. 56 — Summary judgment

The Rules of the Circuit Courts add scheduling requirements on top of these. This page explains what the rules say. It isn't legal advice.