Utah's statement of discovery issues: four pages, seven days, and one attachment

Utah abolished the discovery motion as most states know it. There is no brief, no memorandum, and no open-ended exhibit list.

Instead there is a statement of discovery issues: a maximum of four pages, containing five specified items in a specified order, with exactly one permitted attachment. The other side gets seven days and four pages to object.

It is the most tightly constrained discovery-dispute procedure in the country, and drafting it like a motion is the fastest way to fail.

What it covers

Utah R. Civ. P. 37(a)(1):

A party or the person from whom discovery is sought may request that the judge enter an order regarding any discovery issue, including:

(A) failure to disclose under Rule 26; (B) extraordinary discovery under Rule 26; (C) a subpoena under Rule 45; (D) protection from discovery; or (E) compelling discovery from a party who fails to make full and complete disclosure.

One device covers everything — compelling, protecting, subpoena disputes, and extraordinary discovery. And note who may use it: "A party or the person from whom discovery is sought", so a non-party served with a subpoena files the same statement.

The four pages, and the order

Rule 37(a)(2):

Statement of discovery issues length and content. The statement of discovery issues must be no more than four pages, not including permitted attachments, and must include in the following order:

(A) the relief sought and the grounds for the relief sought stated succinctly and with particularity;

(B) a certification that the requesting party has in good faith conferred or attempted to confer with the other affected parties in person or by telephone in an effort to resolve the dispute without court action;

(C) a statement regarding proportionality under Rule 26(b)(3);

(D) if the statement requests extraordinary discovery, a statement certifying that the party has reviewed and approved a discovery budget; and

(E) if objection was made under Rule 45(e)(4), a statement certifying that the statement of discovery issues has been served on the person subject to the subpoena or a non-party affected by the subpoena.

Three requirements here are stricter than the equivalent rules elsewhere:

The conferral must be "in person or by telephone." An exchange of letters or emails does not satisfy (B) on the face of the rule. This is unusual — most states accept a written attempt.

A proportionality statement is mandatory. Item (C) is not optional and not conditional. Every statement of discovery issues must address proportionality under Rule 26(b)(3).

The order is prescribed. "Must include in the following order" — A through E, in that sequence.

Item (D) ties into Utah's tiered discovery: a request for extraordinary discovery requires certifying that a discovery budget has been reviewed and approved.

One attachment. Only one.

Rule 37(a)(4):

Permitted attachments. The party filing the statement must attach to the statement only a copy of the disclosure, request for discovery or the response at issue.

"Only". Not the correspondence, not the deposition excerpts, not a declaration. The disclosure, the request, or the response — the document actually in dispute.

That constraint is what makes the four pages workable, and it is why the statement has to be written around the text of the request and response rather than around a narrative.

Seven days to object

Rule 37(a)(3):

Objection length and content. No more than seven days after the statement is filed, any other party may file an objection to the statement of discovery issues. If a person subject to a subpoena or a non-party affected by a subpoena timely filed an objection under Rule 45(e)(4), the person subject to the subpoena or the non-party affected by the subpoena may file an objection to the statement of discovery issues. The objection must be no more than four pages, not including permitted attachments, and must address the issues raised in the statement.

Seven days, four pages, and it "must address the issues raised in the statement" — an objection that argues something else has not complied.

Both sides file a proposed order

Rule 37(a)(5):

Proposed order. Each party, or a person subject to a subpoena or a non-party affected by a subpoena, must file a proposed order concurrently with its statement or objection.

Concurrently — with the statement, and with the objection. Not afterwards.

Getting it decided

Rule 37(a)(6):

Decision. Upon filing of the objection or expiration of the time to do so, either party may and the party filing the statement must file a Request to Submit for Decision under Rule 7(g). The court will promptly:

(A) decide the issues on the pleadings and papers;

Note the asymmetry: either party may file the Request to Submit, but the party filing the statement must. A statement that is never submitted is a statement that is never decided, and that omission is on the moving party.

And the default is decision on the papers. There is no assumption of a hearing.

Writing one that works

Where this sits in Utah practice

Utah's discovery architecture is unusual throughout, and the pieces interlock:

• Disclosures are triggered by pleadings, not a conference — 14 days for a plaintiff after the first answer, 42 for a defendant after its own. See Utah initial disclosures.
• Expert discovery is elected by the opponent — deposition or report — and failing to elect forfeits it entirely.
• Discovery is tiered and proportionality is structural, which is why (C) is a mandatory section rather than an argument you might choose to make.

How Utah compares

A short checklist

1. Confer in person or by telephone. Email will not support the (B) certification.
2. Keep it to four pages, in the A-to-E order the rule sets.
3. Include the proportionality statement. It is mandatory in every statement.
4. Attach one document — the disclosure, request or response at issue. Nothing else.
5. File a proposed order with the statement.
6. If you are objecting, diarise seven days and answer the issues actually raised.
7. File the Request to Submit for Decision. If you filed the statement, that is your obligation.
8. Expect a decision on the papers, not a hearing.
9. If you are seeking extraordinary discovery, review and approve a budget first and certify it.

Where these rules live

• Utah R. Civ. P. 26 — Disclosure and discovery
• Utah R. Civ. P. 33 — Interrogatories to parties
• Utah R. Civ. P. 34 — Production of documents
• Utah R. Civ. P. 37 — Statement of discovery issues; sanctions
• Utah R. Civ. P. 45 — Subpoena
• Utah R. Civ. P. 7 — Pleadings allowed; motions, memoranda, hearings, orders

This page explains what the rules say. It isn't legal advice, and the proportionality factors in Rule 26(b)(3) should be read directly before drafting the statement required by Rule 37(a)(2)(C).