504 P.3d 152
Utah Ct. App.2021Background
- Kathy and Colten divorced in 2011; Colten paid alimony that terminated on remarriage/cohabitation or after 15 years.
- Colten filed a petition to terminate alimony on October 30, 2018, alleging Kathy cohabitated with a boyfriend since January 2018; Kathy answered denying cohabitation.
- Utah R. Civ. P. 26 required initial disclosures 14 days after Kathy’s answer; Colten never served those initial disclosures.
- On July 29, 2019 (28 days before trial), Colten served pretrial disclosures listing witnesses and exhibits; Kathy moved to dismiss for failure to make required initial disclosures.
- The district court found a Rule 26 violation but deemed it harmless, allowed Kathy to be called as Colten’s witness, and permitted Colten to present photos, a PI report, Daughter’s testimony, and his own testimony (primarily as impeachment/rebuttal). The court found cohabitation and terminated alimony retroactive to January 2018.
- On appeal, the Court of Appeals reversed, concluding the district court erred in finding harmlessness and misapplied the Rule 26 impeachment exception; it vacated the judgment and remanded with instructions to dismiss the petition.
Issues
| Issue | Plaintiff's Argument (Kathy) | Defendant's Argument (Colten) | Held |
|---|---|---|---|
| Whether failure to serve Rule 26 initial disclosures was harmless such that Kathy could be called as Colten’s case-in-chief witness | Failure to disclose Kathy prejudiced her trial preparation and counsel decisions; testimony should have been barred | Kathy knew her own testimony and had notice of cohabitation issue; no prejudice from late disclosure | Reversed: omission was not harmless; court abused discretion in allowing Kathy to be called and prejudiced Kathy — exclusion should have been ordered and petition dismissed |
| Whether Rule 26’s “solely for impeachment” exception allows withholding witnesses, documents, or tangible things that are used in a party’s case-in-chief | Impeachment exception is narrow and applies only to individuals reserved solely for impeachment/rebuttal; documents/tangible evidence used in case-in-chief must be disclosed | Exception can encompass evidence used to impeach and to assist establishing core facts; trial court has discretion | Reversed: plain text limits the exception to subsection (a)(1)(A)(i); it does not excuse nondisclosure of (a)(1)(A)(ii) case-in-chief witnesses or (a)(1)(B) documents/tangible things; evidence should have been excluded |
Key Cases Cited
- Hansen v. Kurry Jensen Props., 493 P.3d 1131 (Utah Ct. App. 2021) (emphasizing risks and prejudice when initial disclosures are not provided at all)
- RJW Media Inc. v. Heath, 392 P.3d 956 (Utah Ct. App. 2017) (parties must be liberally forthcoming in disclosures; insufficient disclosures risk exclusion)
- Ollier v. Sweetwater Union High School Dist., 768 F.3d 843 (9th Cir. 2014) (an adverse party should not have to guess which undisclosed witnesses may be called)
- Arreguin-Leon v. Hadco Constr. LLC, 438 P.3d 25 (Utah Ct. App. 2018) (initial disclosures aim to prevent surprise testimony and enable targeted discovery)
- Lee v. Williams, 420 P.3d 88 (Utah Ct. App. 2018) (reversal required only where error likely affected the outcome; prejudice standard)
- Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128 (E.D. Wis. 2003) (discussing the importance of witness disclosures to permit effective discovery)