FRBP 7026: Disclosures, Discovery Plan, and Sanctions

Federal Rule of Bankruptcy Procedure 7026 pulls the full civil discovery framework of Federal Rule of Civil Procedure 26 into bankruptcy adversary proceedings. The rule itself is a single sentence stating that FRCP 26 “applies in an adversary proceeding.”¹ That short sentence carries a heavy load: it imports mandatory initial disclosures, a required pre-discovery conference, expert witness reports, pretrial disclosures, work product and privilege procedures, proportionality limits, and the court’s authority to manage the process.

Where FRBP 7026 Applies

Adversary proceedings are separate lawsuits filed inside a larger bankruptcy case. Typical examples include actions to deny or revoke a discharge, challenges to the validity of a lien, and suits to recover money or property for the estate. In those cases the disclosure and discovery-planning requirements kick in automatically unless the court orders otherwise.

Contested matters are different. These are disputes resolved by motion within the main bankruptcy case, such as an objection to a debtor’s repayment plan or a motion to use cash collateral. FRBP 9014 lists Rule 7026 among the Part VII rules that apply to contested matters by default, but it carves out several key FRCP 26 provisions: mandatory initial disclosures, expert testimony disclosures, pretrial disclosures, and the required pre-discovery conference do not apply unless the court specifically orders them.² So if you are handling a contested matter, do not assume the full disclosure apparatus applies; read the court’s order.

The Rule 26(f) Conference and Discovery Plan

Before discovery starts in an adversary proceeding, the parties must meet and confer under FRCP 26(f). The conference is not a formality. Parties are expected to discuss the nature of their claims and defenses, explore whether early resolution is possible, address preservation of discoverable information, and develop a written discovery plan.³ Every attorney of record and every unrepresented party who has appeared shares responsibility for arranging the conference and submitting the plan to the court within 14 days afterward.

The plan must address several specific topics:

When initial disclosures were made or will be made, and any proposed changes to the standard schedule.
The subjects on which discovery is needed, a completion deadline, and whether discovery should be phased or focused on particular issues.
How electronically stored information will be preserved, disclosed, and produced, including production format.
How the parties will handle privilege and work product disputes, including timing for privilege logs and whether to seek a Federal Rule of Evidence 502 order covering inadvertent disclosures.
Any changes to the default limits on interrogatories, depositions, or requests for admission.

The plan shapes the court’s scheduling order, and changing course later takes good cause. Sloppy planning at this stage invites disputes that could have been avoided.

Mandatory Initial Disclosures

Each party must hand over four categories of basic information early in the case, without waiting for a request:

The name, and if known the address and telephone number, of every individual likely to have discoverable information the party may use to support its claims or defenses, with a description of the subjects.³
A copy, or a description organized by category and location, of all documents, electronically stored information, and tangible items in the party’s possession or control that may be used to support its claims or defenses.
A calculation of each category of damages claimed, supported by the underlying documents and evidentiary material made available for inspection.
Any insurance agreement under which an insurer could be liable to pay all or part of a judgment.

Initial disclosures are due within 14 days after the Rule 26(f) conference unless the parties agree to a different schedule or the court orders one. A party who joins the case after the conference has 30 days from the date of service or joinder to make its disclosures.

Expert Witness Disclosures

Experts carry the heaviest disclosure burden. For a retained or specially employed expert, the party must produce a written report signed by the expert that contains:

A complete statement of every opinion the expert will express, along with the basis and reasoning for each.
The facts or data the expert considered.
Any exhibits that will summarize or support the opinions.
The expert’s qualifications, including all publications from the previous ten years.
A list of every other case in which the expert testified at trial or by deposition in the previous four years.
A statement of the compensation the expert will receive for the study and testimony.³

Experts who were not retained for the purpose of testifying, such as a treating physician or an employee whose job does not regularly involve expert testimony, face a lighter requirement: a summary of the subject matter and the facts and opinions expected to be given.

When expert evidence is offered solely to contradict or rebut another party’s expert disclosure, the rebuttal disclosure is due within 30 days after the other party’s disclosure, unless the parties agree otherwise or the court orders otherwise. That window is tight; if a rebuttal expert will need time to review the opposing report, retain counsel and the expert early.

Draft reports are protected as work product regardless of how they were recorded. Communications between the party’s attorney and a retained testifying expert are also protected, with three exceptions: discussions about the expert’s compensation, facts or data the attorney provided that the expert considered, and assumptions the attorney supplied that the expert relied on.

Pretrial Disclosures

At least 30 days before trial, each party must disclose:

The name, address, and telephone number of each witness, separating witnesses the party expects to call from those it may call only if the need arises.
Any witnesses whose testimony will be presented by deposition, with a transcript of the relevant portions if the deposition was not recorded stenographically.
Every document or exhibit the party may offer, again separating those it expects to use from those held in reserve.

The opposing party then has 14 days to object to deposition designations or exhibits. Missing that window waives most objections, with narrow exceptions for relevance and prejudice challenges under the Federal Rules of Evidence.

Duty to Supplement

Disclosure obligations do not end at the initial exchange. A party that has made a Rule 26(a) disclosure, or that has responded to an interrogatory, production request, or request for admission, must supplement or correct it in a timely manner on learning that the original was incomplete or incorrect in any material respect, unless the corrective information has already been communicated in discovery or in writing.

For retained experts, the supplementation duty extends to both the written report and information given during the expert’s deposition. Updates or corrections to expert information must be disclosed by the time pretrial disclosures are due. Adversary proceedings often run for months, and facts change; failing to update earlier disclosures can lead to evidence being excluded at trial.

Privilege, Work Product, and Clawbacks

Documents and tangible things prepared in anticipation of litigation or for trial are generally protected from discovery. The protection reaches beyond materials the attorney personally created and covers work by consultants, insurers, agents, and other representatives on the case.³ A court can order production if the requesting party shows substantial need and cannot obtain the equivalent through other means without undue hardship. Even then, the court must shield the attorney’s mental impressions, conclusions, opinions, and legal theories.

When you withhold otherwise discoverable information on privilege or work product grounds, FRCP 26(b)(5)(A) requires you to expressly state the claim and describe the withheld materials in enough detail for the opposing party to assess the claim, without revealing protected content. In practice that means a privilege log listing each withheld document, its date, author and recipients, general subject matter, and the privilege claimed.

If privileged material is inadvertently produced, the producing party can notify the receiving party and invoke a clawback. On notice, the receiving party must promptly return, sequester, or destroy the material and any copies, stop using or disclosing it, and take reasonable steps to retrieve it if it was already shared. Either party can then ask the court to rule on the privilege claim. Agreeing on a clawback protocol at the Rule 26(f) conference and having the court fold it into a scheduling order reduces the risk and cost of an inadvertent slip.

Court Control and Protective Orders

Discovery must be relevant to a party’s claims or defenses and proportional to the needs of the case. Courts weigh the importance of the issues at stake, the amount in controversy, the parties’ relative access to information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense outweighs the likely benefit. Information does not need to be admissible at trial to be discoverable, but it must clear the proportionality bar.

When a request crosses into harassment, excessive expense, or trade secrets and other sensitive information, any party or person from whom discovery is sought can move for a protective order under FRCP 26(c). The court can forbid the discovery, limit its scope, require that a deposition be sealed, specify the time or method for production, or impose other conditions designed to protect against oppression while still allowing legitimate information exchange.

Sanctions for Noncompliance

Under FRCP 37(c)(1), a party that fails to provide information or identify a witness as required by Rule 26(a) or 26(e) is barred from using that information or witness on a motion, at a hearing, or at trial, unless the failure was substantially justified or harmless.⁴ Exclusion is the default penalty, and it can be case-ending if the excluded evidence was central.

Beyond exclusion, the court can layer on additional sanctions after giving the non-compliant party a chance to be heard: payment of the reasonable expenses, including attorney’s fees, the other side incurred because of the failure; informing the jury of the party’s failure to disclose; and broader measures such as treating certain facts as established, prohibiting a party from supporting or opposing specific claims, striking pleadings, staying the case, entering default judgment, or dismissing the action entirely.

Courts usually escalate rather than jump to dismissal or default, but a pattern of noncompliance or a violation that looks deliberate can accelerate that progression. The straightforward protection is to make disclosures on time, update them when things change, and raise any legitimate objections through the proper channels rather than by stonewalling.

1
Legal Information Institute. Federal Rules of Bankruptcy Procedure Rule 7026 – Duty to Disclose; General Provisions Governing Discovery
2
Legal Information Institute. Federal Rules of Bankruptcy Procedure Rule 9014 – Contested Matters
3
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
4
Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions