Rule 7. Discovery
Effective July 1, 2024
(A) In General.
(1) Unless otherwise limited by court order, a party may obtain discovery regarding any matter that is:
a) Nonprivileged;
b) Relevant; and
c) Proportional to the needs of the case, considering
i. The importance of the issues at stake in the action;
ii. The amount in controversy;
iii. The parties’ relative access to resolving the issues; and
iv. Whether the burden or expense of the proposed discovery outweighs its likely benefit.
(2) All Discovery, including Initial Disclosures, must be supplemented in accordance with Rule 26(E) of the Indiana Rules of Trial Procedure.
(B) Discovery of Inadmissible Information.
Information within this scope of discovery need not be admissible in evidence to be discoverable.
(C) Required Initial Disclosures.
(1) Initial Disclosures.
Without awaiting a discovery request, a party must disclose to the other parties:
a) The name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
b) A copy or description by category and location of all documents, electronically stored information, and tangible documents or items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
c) A list of each category of damages claimed; the amount of damages in each category. The parties must also list and make available for inspection the documents or evidentiary material (unless privileged or protected from disclosure) supporting the type and amount of damages in each category claimed, including materials bearing on the nature and extent of injuries suffered.
d) For inspection and copying any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in an action or to indemnify or reimburse for payments made to satisfy the judgment; and
e) Documents that support any irreparable harm alleged by a party seeking injunctive relief.
(2) Limitations on Initial Disclosures.
Unless an agreement of the parties or a court order sets a different time, a party need not disclose any document that was prepared or created more than six (6) years before the date of the event that forms the basis of the party’s claim or defense.
(3) Timing.
Unless an agreement of the parties or a court order sets a different time, a party must make the initial disclosures no later than twenty-one (21) days before the initial case management conference.
(4) Additional Disclosures.
The Commercial Court Judge may order additional disclosures in a specific case.
(D) Limitations on Discovery.
(1) Interrogatories.
Unless an agreement of the parties or a court order sets a different limit, a party must not serve more than twenty-five (25) interrogatories, including sub-parts.
(2) Depositions.
a) Unless an agreement of the parties or a court order sets a different limit, a party must not depose more than ten (10) persons.
b) Unless an agreement of the parties or a court order sets a different limit, a deposition must not last more than seven (7) hours.
(E) Discovery Plan.
(1) Contents.
The parties must jointly submit to the Commercial Court a proposed Discovery Plan that describes:
a) How the parties will fairly and expeditiously conduct discovery;
b) The issues that might arise concerning disclosure, discovery, and preservation of information; and
c) Specific provisions for the fair and efficient resolution of discovery disputes, including:
i. A requirement that counsel seeking relief first specify to opposing counsel a concise statement of the alleged deficiencies or objections and then meet in good faith to try to effectuate a written resolution of the dispute before submission to the Court for resolution;
ii. A mechanism for the expedient submission to the Court of discovery disputes that counsel were not able to resolve, including submissions via conference call or email;
iii. Restrictions on the length of motions, memoranda, and supporting materials, and time limits for their submission;
iv. A prohibition, in all but extraordinary circumstances, on conducting discovery with respect to a discovery dispute itself; and
v. Appointing an Appointed Neutral to resolve discovery disputes.
(2) Timing.
a) Unless an agreement of the parties or a court order sets a different time, the parties must submit the Discovery Plan at least five (5) business days before the initial case management conference.
b) If the parties are unable to agree, they should timely submit the portions of a Plan on which they agree and their competing proposals for all other portions of the Plan.
(F) Failure to Preserve Electronically Stored Information.
(1) Litigants must preserve electronically stored information consistent with Rule 37(e) of the Federal Rules of Civil Procedure.
(2) If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it and it cannot be restored or replaced through additional discovery, the Court:
a) Upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
b) Only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
i. Presume that the lost information was unfavorable to the party;
ii. Instruct the jury that it may or must presume the information was unfavorable to the party; or
iii. Dismiss the party’s claim(s) or enter a default judgment.
(G) Objections to Discovery.
If a party objects to a discovery request, either in whole or in part, the objecting party must concisely state in detail the basis for the objection.
(H) Incomplete or Partial Response to Discovery Request.
If a party provides a partial or incomplete answer or response to a discovery request, the responding party must state specifically the reason that the answer or response is partial or incomplete.
(I) Resolving Disputes Regarding Disclosure and Discovery.
(1) Obligation to Meet and Confer.
a) Protective Orders.
Before moving for a protective order to limit disclosure or discovery, a party must meet and confer in good faith with the party seeking disclosure or discovery to try to resolve the dispute without submitting it to the Commercial Court Judge. The parties must discuss the need for a protective order and, when appropriate, the form of the order.
b) Motions to Compel.
Before moving to compel disclosure or discovery, a party must meet and confer in good faith with the party resisting disclosure or discovery to try to resolve the dispute without submitting it to the Commercial Court Judge.
c) Content of the Meeting.
i. The parties must meet and confer either in person by telephone, or by a remote meeting platform. An exchange solely of letters, emails, or other similar communications does not satisfy the obligation to meet and confer.
ii. The party resisting disclosure or discovery must provide to the opposing party a concise statement of the specific reasons that disclosure or discovery is allegedly improper.
(2) Submission to the Court.
The Commercial Court Judge will resolve a motion for protective order regarding disclosure or discovery or a motion to compel disclosure or discovery only when:
a) The motion includes a verification that the parties have fulfilled their obligation to meet and confer; or
b) The moving party demonstrates that:
i. It was not possible through good-faith efforts to meet and confer; and
ii. Time is of the essence in resolving the dispute.
Commentary
1. Commercial Court Rule 7 is derived in part from the amendment to Federal Rules of Civil Procedure 26(b)(1) that became effective on December 1, 2015. The developing case law concerning the 2015 amendments to the federal discovery rules is helpful to the Indiana Commercial Courts in determining the scope of discovery. Additionally, Commercial Court Rule 7 derives from the Indiana Supreme Court’s January 20, 2016, Order Establishing The Indiana Commercial Court Pilot Project and from the second paragraph of Indiana Trial Rule 26(B)(1).
In relevant part, the January 20, 2016, Order provides: “Specifically, the [Indiana Commercial Court] Pilot Project will operate pursuant to guidelines adopted by the Working Group addressing case eligibility, assignment, and transfer; caseload and workload; commercial court masters; the publication of commercial court orders and statistics; and other relevant matters.”
In relevant part, Trial Rule 26(B) provides: “Scope of discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: … The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought or; (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(C).”
2. The information and documents identified in the initial disclosures in Commercial Court Rule 7(C) are those most likely to be automatically requested by experienced counsel and are most likely to be useful in narrowing the issues. These initial disclosures are not intended to preclude other necessary discovery. For instance, Rule 6(D) limits disclosure of documents to those prepared within the six years of the events giving rise to the claim or defense. A party may seek discovery of older documents, subject to the restrictions of relevance and proportionality described in Commercial Court Rule 7(A). Likewise, the initial disclosures are not intended to be exhaustive of information that should be shared by the parties.
3. Strict compliance with the meet-and-confer requirements of Indiana Trial Rule 26(F) is mandatory. This includes actual face-to-face or telephonic meetings. An exchange of emails or letters alone is insufficient. Prompt ruling on discovery disputes deters unreasonable and obstructive conduct and prevents the frustration of existing discovery deadlines and the delay of ongoing discovery while a ruling is pending. Cf. Fed. R. Civ. P. 26(a)(2) (requiring disclosure of expert witnesses); Fed. R. Civ. P. 26(a)(3) (requiring disclosure of witnesses and documents to be used at trial). Commercial Court Rule 6(C)(4) provides authority for the Commercial Court to order additional disclosures.
4. A request to seal information from public access must conform to the Administrative Rules.
5. Matters concerning disclosure and discovery that are not addressed in these Commercial Court Rules are governed by the Indiana Rules of Civil Procedure and other local rules that are applicable in the Commercial Courts.